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BP CAPITAL MARKETS p.l.c.,
COMPANY
AND
BP p.l.c.,
GUARANTOR
TO
JPMORGAN CHASE BANK,
TRUSTEE
-------------
INDENTURE
DATED AS OF MARCH 8, 2002
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BP CAPITAL MARKETS p.l.c.,
AND
BP p.l.c.
TO
JPMORGAN CHASE BANK
INDENTURE, DATED AS OF MARCH 8, 2002
Reference is made to the following provisions of the Trust Indenture
Act of 1939, as amended, which establish certain duties and responsibilities of
the Company and the Trustee which may not be set forth fully in this Indenture:
SECTION SUBJECT
310(b) Disqualifications of Trustee for conflicting interest
311 Preferential collection of claims of Trustee as creditor of Company
312(a) Periodic filing of information by Company with Trustee
312(b) Access of Securityholders to information
313(a) Annual report of Trustee to Securityholders
313(b) Additional reports of Trustee to Securityholders
314(a) Reports by Company, including annual compliance certificate
314(c) Evidence of compliance with conditions precedent
315(a) Duties of Trustee prior to default
315(b) Notice of default from Trustee to Securityholders
315(c) Duties of Trustee in case of default
315(d) Provisions relating to responsibility of Trustee
315(e) Assessment of costs against litigating Securityholders in certain
circumstances
316(a) Directions and waivers by Securityholders in certain circumstances
316(b) Prohibition of impairment of right of Securityholders to payment
316(c) Right of Company to set record date for certain purposes
317(a) Special powers of Trustee
318(a) Provisions of Act to control in case of conflict
BP CAPITAL MARKETS p.l.c.,
AND
BP p.l.c.
TO
JPMORGAN CHASE BANK
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF MARCH 8, 2002
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) ........................................ 609
(a)(2) ........................................ 609
(a)(3) ........................................ Not Applicable
(a)(4) ........................................ Not Applicable
(a)(5) ........................................ 609
(b) ........................................ 608
610
Section 311(a) ........................................ 613(a)
(b) ........................................ 613(b)
(b)(2) ........................................ 703(a)(2)
703(b)
Section 312(a) ........................................ 701
702(a)
(b) ........................................ 702(b)
(c) ........................................ 702(c)
Section 313(a) ........................................ 703(a)
(b) ........................................ 703(b)
(c) ........................................ 703(a)
703(b)
(d) ........................................ 703(c)
Section 314(a)(1)(2) and (3)............................... 704
(a)(4) ........................................ 1008
(b) ........................................ Not Applicable
(c)(1) ........................................ 102
(c)(2) ........................................ 102
(c)(3) ........................................ Not Applicable
(d) ........................................ Not Applicable
(e) ........................................ 102
Section 315(a) ........................................ 601(a)
(b) ........................................ 602
703(a)(6)
(c) ........................................ 601
(d) ........................................ 601
(d)(1) ........................................ 601
(d)(2) ........................................ 601
(d)(3) ........................................ 601
(e) ........................................ 514
Section 316(a) 101
(a)(1)(A)....................................... 502
512
(a)(1)(B)....................................... 513
(a)(2) ........................................ Not Applicable
(b) ........................................ 508
(c) ........................................ 513
Section 317(a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 1006
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NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A
PART OF THE INDENTURE.
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 318(a) ........................................ 107
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NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A
PART OF THE INDENTURE.
TABLE OF CONTENTS
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PAGE
PARTIES........................................................................1
RECITALS OF THE COMPANY........................................................1
RECITALS OF THE GUARANTOR......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS................................................1
Act........................................................2
Affiliate..................................................2
Authenticating Agent.......................................2
Board of Directors.........................................2
Board Resolution...........................................2
Business Day...............................................2
Commission.................................................2
Company....................................................3
Company Request............................................3
Company Order..............................................3
Corporate Trust Office.....................................3
corporation................................................3
Defaulted Interest.........................................3
Depositary.................................................3
Event of Default...........................................3
Executive Officer's Certificate............................3
Global Security............................................3
Government Obligations.....................................3
Guarantee..................................................4
Guarantor..................................................4
Holder.....................................................4
Indenture..................................................4
interest...................................................4
Interest Payment Date......................................4
Maturity...................................................4
Officers' Certificate......................................4
Opinion of Counsel.........................................4
Original Issue Discount Security...........................5
Outstanding................................................5
Paying Agent...............................................6
Periodic Offering..........................................6
Person.....................................................6
Place of Payment...........................................6
Redemption Date............................................6
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NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
Redemption Price...........................................6
Regular Record Date........................................6
Responsible Officer........................................6
Securities.................................................6
Security Register..........................................6
Security Registrar.........................................6
Special Record Date........................................7
Stated Maturity............................................7
Subsidiary.................................................7
Trustee....................................................7
Trust Indenture Act........................................7
United Kingdom.............................................7
Vice President.............................................7
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.......................7
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.....................8
SECTION 104. ACTS OF HOLDERS............................................9
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR...........9
SECTION 106. NOTICE TO HOLDERS; WAIVER.................................10
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.........................10
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS..................11
SECTION 109. SUCCESSORS AND ASSIGNS....................................11
SECTION 110. SEPARABILITY CLAUSE.......................................11
SECTION 111. BENEFITS OF INDENTURE.....................................11
SECTION 112. GOVERNING LAW.............................................11
SECTION 113. LEGAL HOLIDAYS............................................11
SECTION 114. SUBMISSION TO JURISDICTION................................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY...........................................13
SECTION 202. FORM OF FACE OF SECURITY..................................14
SECTION 203. FORM OF REVERSE OF SECURITY...............................17
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION...........21
SECTION 205. FORM OF GUARANTEE.........................................21
SECTION 206. FORM OF LEGEND FOR GLOBAL SECURITIES......................25
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES......................25
SECTION 302. DENOMINATIONS.............................................28
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING............28
SECTION 304. TEMPORARY SECURITIES......................................30
ii
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.......30
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..........32
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............33
SECTION 308. PERSONS DEEMED OWNERS.....................................34
SECTION 309. CANCELLATION..............................................34
SECTION 310. COMPUTATION OF INTEREST...................................35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE...................35
SECTION 402. APPLICATION OF TRUST MONEY................................36
SECTION 403. DEFEASANCE UPON DEPOSIT OF MONEYS OR GOVERNMENT
OBLIGATIONS............................................37
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.........................................39
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT........41
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.............................................42
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM..........................43
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.............................................44
SECTION 506. APPLICATION OF MONEY COLLECTED............................44
SECTION 507. LIMITATION ON SUITS.......................................44
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...................................45
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES........................45
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE............................46
SECTION 511. DELAY OR OMISSION NOT WAIVER..............................46
SECTION 512. CONTROL BY HOLDERS........................................46
SECTION 513. WAIVER OF PAST DEFAULTS...................................47
SECTION 514. UNDERTAKING FOR COSTS.....................................47
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS..........................48
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.......................48
iii
SECTION 602. NOTICE OF DEFAULTS........................................48
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.................................49
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES....50
SECTION 605. MAY HOLD SECURITIES.......................................50
SECTION 606. MONEY HELD IN TRUST.......................................50
SECTION 607. COMPENSATION AND REIMBURSEMENT............................50
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS...................51
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...................51
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.........52
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................53
SECTION 612. MERGER, CONSOLIDATION OR SUCCESSION TO BUSINESS...........54
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.........55
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.......................55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND
GUARANTOR
SECTION 701. COMPANY AND GUARANTOR TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS...................................56
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS....57
SECTION 703. REPORTS BY TRUSTEE........................................57
SECTION 704. REPORTS BY COMPANY AND GUARANTOR..........................58
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY
ON CERTAIN TERMS.......................................59
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.........................60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS........60
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...........62
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES......................63
iv
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.........................63
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.......................63
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES........64
ARTICLE TEN
PARTICULAR COVENANTS OF COMPANY AND GUARANTOR
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST BY COMPANY.....64
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY BY COMPANY................64
SECTION 1003. RESERVED..................................................65
SECTION 1004. RESERVED..................................................65
SECTION 1005. MAINTENANCE OF OFFICE OR AGENCY BY GUARANTOR..............65
SECTION 1006. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.........65
SECTION 1007. CORPORATE EXISTENCE.......................................66
SECTION 1008. STATEMENT BY EXECUTIVE OFFICERS AS TO COMPLIANCE..........66
SECTION 1009. WAIVER OF CERTAIN COVENANTS...............................67
SECTION 1010. ADDITIONAL AMOUNTS........................................67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE..................................70
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.....................70
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.........70
SECTION 1104. NOTICE OF REDEMPTION......................................71
SECTION 1105. DEPOSIT OF REDEMPTION PRICE...............................71
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.....................72
SECTION 1107. SECURITIES REDEEMED IN PART...............................72
SECTION 1108. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.......72
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE..................................73
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.....73
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.................74
v
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. GUARANTEE.................................................74
SECTION 1302. SUBROGATION...............................................75
SECTION 1303. EXECUTION AND DELIVERY OF GUARANTEES......................75
TESTIMONIUM...................................................................76
SIGNATURES....................................................................76
ACKNOWLEDGMENTS...............................................................76
vi
THIS INDENTURE is dated as of March 8, 2002, among BP Capital Markets
p.l.c., a corporation duly organized and existing under the laws of England and
Wales (herein called the "Company"), having its principal office at Breakspear
Park, Breakspear Way, Hemel Hempstead, Herts HP24UL, England, and BP p.l.c., a
corporation duly organized and existing under the laws of England (herein called
the "Guarantor"), having its principal office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, and JPMorgan Chase Bank, a corporation duly
organized and existing under the laws of the State of New York, 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 unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor desires to make the Guarantees provided for herein.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with accounting principles
generally accepted in the United Kingdom; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person indirectly
controlling or controlled by or under direct or 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.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors", when used with reference to the Company or the
Guarantor, means either the board of directors, or any committee of such board
authorized to act for it hereunder, of the Company or of the Guarantor, as the
case may be.
"Board Resolution", when used with reference to the Company or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or by the Secretary, a Deputy Secretary, an
Assistant Secretary or a Deputy Assistant Secretary of the Guarantor, as the
case may be, to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking or trust institutions in that Place of Payment are authorized generally
or obligated by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
2
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company or of the Guarantor, in the case of the
Company, by a Director or a senior officer, or, in the case of the Guarantor, by
one of its Directors or any other Person duly authorized thereto by Board
Resolution and by the Secretary, a Deputy Secretary, an Assistant Secretary or a
Deputy Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" means a corporation, association, company, limited
liability company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act, as amended,
specified for that purpose as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute, in each case as amended from time to time.
"Executive Officer's Certificate" means a certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company or the Guarantor, as the case may be.
"Global Security" means a Security bearing the legend required by
Section 206 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee and registered in the name of the
Depositary or its nominee.
"Government Obligations" means securities that are (i) direct
obligations of the United States of America or any foreign government of a
sovereign state for the payment of which its full faith and credit is pledged or
(ii) obligations of an entity controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such foreign
government the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such foreign
government, as the case may be, which, in either case under clauses (i) or (ii)
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government
3
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include the
guarantee set forth in Section 1301.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor corporation.
"Holder" means a Person in whose name a Security is registered in the
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
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively, and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed, in the case of the
Company, by a Director or a senior officer, or, in the case of the Guarantor, by
one of its Directors or any other Person duly authorized thereto by Board
Resolution and by the Secretary, a Deputy Secretary, an Assistant Secretary or a
Deputy Assistant Secretary, and delivered to the Trustee. Each such Officers'
Certificate shall contain the statements required by Section 314(e) of the Trust
Indenture Act if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or the Guarantor. Each such opinion shall
4
include the statements required by Section 314(e) of the Trust Indenture Act, if
applicable.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or the Guarantor) in trust or set aside and
segregated in trust by the Company or the Guarantor (if the Company or the
Guarantor shall act as Paying Agent) for the Holders of such Securities;
provided however, that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue 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 502, (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the principal
amount of such Security which shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by Section 301 (C) the
principal amount of a Security denominated in one or more foreign currencies or
currency units shall be the U.S. dollar equivalent, determined in the manner
provided as contemplated by Section 301 on the date of original issuance of such
Security of the principal amount (or, in the case of a Security described in
clause (A) or (B) above, the amount determined pursuant to such Clause) of such
Security and (D) Securities owned by the Company, the Guarantor or any other
obligor upon the Securities or any Affiliate of the Company or the Guarantor 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
5
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, the Guarantor or of such other
obligor.
"Paying Agent" means any Person (which may include the Company or the
Guarantor) authorized by the Company to pay the principal of (and premium, if
any) or interest on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest thereon, if any, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company upon the issuance of such
Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
Chairman or any Vice-Chairman of the board of directors, the Chairman or any
Vice-Chairman of the executive committee of the board of directors, the Chairman
of the trust committee, the President, any Vice President or any Corporate Trust
Officer of the Trustee.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities that have been issued,
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
6
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock or equity interest having by the terms thereof ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or
controlled by the Guarantor or by one or more Subsidiaries, or by the Guarantor
and one or more Subsidiaries.
"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 previsions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is than a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series, provided that the Trustee shall not be the Company,
the Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor or of such other obligor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, and as in force at the date as of
which this instrument was executed, and as amended thereafter from tine to time.
"United Kingdom" means the United Kingdom of Great Britain and Northern
Ireland.
"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".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate or an Opinion of Counsel
and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture. Such an Officers' Certificate shall
state that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and such Opinion of
Counsel shall state that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request
7
as to which the furnishing of such documents is specifically required by any
other provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
provided under Section 1008) hereof shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenants or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
8
Section 104. 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 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, where it is hereby expressly required, to the Company and
the Guarantor. 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 instrument. 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 601) conclusive in favor of
the Trustee, the Company and the Guarantor 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. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed
9
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Institutional Trust Services, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing, in the
case of the Company, to or with it at the address of its principal office
specified in the first paragraph of this instrument, Attention: Company
Secretary, or at any other address previously furnished in writing to the
Trustee by the Company, with a copy to the Guarantor, and in the case of
the Guarantor, to or with it at the address of its office specified in the
first paragraph of this instrument, Attention: Manager, Capital Markets, or
at any other address previously furnished in writing to the Trustee by the
Guarantor, with a copy to the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders 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 condition precedent to the validity
of any action taken in reliance upon such waiver.
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 by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
10
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein, the Reconciliation and tie
between the Trust Indenture Act and this Indenture and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or in the
Guarantees 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in the Guarantees,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York, except that
the authorization and execution of this Indenture, the Securities and the
Guarantees shall be governed by the laws of the respective jurisdictions of
organization of the Company and the Guarantor.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
11
Section 114. Submission to Jurisdiction.
The Company agrees that any legal suit, action or proceeding arising
out of or based upon the Indenture or the Securities may be instituted in any
state or Federal court in the Borough of Manhattan, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, waives, to the extent it may effectively do so,
any objection which it may have now or hereafter to the laying of the venue of
any such suit, action or proceeding, and irrevocably submits to the jurisdiction
of any such court in any such suit, action or proceeding. The Company has
designated and appointed BP America Inc. (or any successor corporation) as the
Company's authorized agent to accept and acknowledge on its behalf service of
any and all process which may be served in any such suit, action or proceeding
in any such court and agrees that service of process upon said agent at its
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
the General Counsel (or at such other address in the Borough of Manhattan, The
City of New York, as the Company may designate by written notice to the
Guarantor and the Trustee), and written notice of said service to the Company,
mailed or delivered to it, at Breakspear Park, Breakspear Way, Hemel Hempstead,
Herts HP2 4UL, England, attention of the Secretary (until another address is
filed by the Company with the Trustee), shall be deemed in every respect
effective service of process upon the Company in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon the
Company, whether or not the Company shall then be doing, or at any time shall
have done, business within the State of New York, and any such service of
process shall be of the same force and validity as if service were made upon it
according to the laws governing the validity and requirements of such service in
such State, and waives all claim of error by reason of any such service. Said
designation and appointment shall be irrevocable until the Indenture shall have
been satisfied and discharged in accordance with Article Four. The Company
agrees to take all action as may be necessary to continue the designation and
appointment of BP America Inc. or any successor corporation in full force and
effect so that the Company shall at all times have an agent for service of
process for the above purposes in the Borough of Manhattan, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America.
The Guarantor agrees that any legal suit, action or proceeding arising
out of or based upon the Indenture or the Guarantees may be instituted in any
state or Federal court in the Borough of Manhattan, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, waives, to the extent it may effectively do so,
any objection which it may have now or hereafter to the laying of the venue of
any such suit, action or proceeding, and irrevocably submits to the jurisdiction
of any such court in any such suit, action or proceeding. The Guarantor has
designated and appointed BP America Inc. (or any successor corporation) as the
Guarantor's authorized agent to accept and acknowledge on its behalf service of
any and all process which may be served in any such suit, action or proceeding
in any such court and agrees that service of process upon said agent at its
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
the General Counsel (or at such other address in the Borough of Manhattan, The
City of New York, as the Guarantor may designate by written notice to the
Company and the Trustee), and written notice of said service to the Guarantor,
mailed or delivered to it, at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, attention of the Secretary (until
12
another address is filed by the Guarantor with the Trustee), shall be deemed in
every respect effective service of process upon the Guarantor in any such suit,
action or proceeding and shall be taken and held to be valid personal service
upon the Guarantor, whether or not the Guarantor shall then be doing, or at any
time shall have done, business within the State of New York, and any such
service of process shall be of the same force and validity as if service were
made upon it according to the laws governing the validity and requirements of
such service in such State, and waives all claim of error by reason of any such
service. Said designation and appointment shall be irrevocable until the
Indenture shall have been satisfied and discharged in accordance with Article
Four. The Guarantor agrees to take all action as may be necessary to continue
the designation and appointment of BP America Inc. or any successor corporation
in full force and effect so that the Guarantor shall at all times have an agent
for service of process for the above purposes in the Borough of Manhattan, ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Guarantees to be endorsed on the Securities of each series shall be
in substantially the form set forth in Section 205, or in such other form as
shall be established by or pursuant to a Board Resolution of the Guarantor or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other corrections as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the person duly authorized thereto
executing such Guarantees, all as evidenced by such execution. If the form of
Guarantees to be endorsed on the Securities of any series is established by
action
13
taken pursuant to a Board Resolution of the Guarantor, a copy of an appropriate
record of such action shall be certified by the Secretary, a Deputy Secretary,
an Assistant Secretary or a Deputy Assistant Secretary of the Guarantor and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities and Guarantees shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
Section 202. Form of Face of Security.
[INSERT ANY REQUIRED UNITED KINGDOM SELLING RESTRICTION AND/OR TAXATION
LEGEND.]
BP CAPITAL MARKETS P.L.C.
[.....%] GUARANTEED [ZERO COUPON] [NOTE] [DEBENTURE] DUE.....
No...................... $................
BP CAPITAL MARKETS P.L.C., a corporation duly organized and existing
under the laws of England and Wales (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
........................................., or registered assigns, the principal
sum of .............. [Dollars] on ....................... [If the Security is
to bear interest prior to Maturity, insert --, and to pay interest thereon from
......................... or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on
.............................. and ................................ in each year,
commencing ............................., at the rate of .......% per annum,
until the principal hereof is paid or made available for payment [If applicable
insert --, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of .....% per annum on any overdue principal and
premium and on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the .............
or ............. (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any
14
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
If any deduction or withholding for any present or future taxes,
assessments or other governmental charges of the jurisdiction (or any political
subdivision or taxing authority thereof or therein) in which the Company is
incorporated, shall at any time be required by such jurisdiction (or any such
political subdivision or taxing authority) in respect of any amounts to be paid
by the Company of principal of or interest on a Security of any series, then the
Company will pay to the Holder of a Security of such series such additional
amounts as may be necessary in order that the net amounts paid to such Holder of
such Security who, with respect to any such tax, assessment or other
governmental charge, is not resident in such jurisdiction, after such deduction
or withholding, shall be not less than the amounts specified in such Security to
which such Holder is entitled; provided, however, that the Company shall not be
required to make any payment of additional amounts (1) for or on account of any
such tax, assessment or governmental charge imposed by the United States or any
political subdivision or taxing authority thereof or therein or (2) for or on
account of:
(a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security of such series (where presentation is
required) for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal of,
or any interest on, the Securities of such series;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of the
Security of such series (i) to provide information concerning the nationality,
residence or identity of the Holder or such beneficial owner or (ii) to make any
declaration or other similar claim or satisfy any information or reporting
requirements, which, in the case of (i) or (ii), is required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
15
jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which such Holder
would have been able to avoid by presenting such Security to another Paying
Agent;
(f) any tax, assessment or other governmental charge which is imposed
on a payment pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of November 26 and
27, 2000, or any law implementing such directive; or
(g) any combination of items (a), (b), (c), (d), (e) and (f) above; nor
shall additional amounts be paid with respect to any payment of the principal
of, or any interest on, any Security of such series to any Holder who is a
fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent such payment would be required by the laws of the jurisdiction (or
any political subdivision or taxing authority thereof or therein) to be included
in the income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such additional amounts had it been the Holder of such
Security.
The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Company is organized, or any political
subdivision or taxing authority thereof or therein.
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of .....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of .....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in .................., [in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts] [specify other
currency] [if applicable, insert --; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
16
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
BP CAPITAL MARKETS P.L.C.
By...................................
Attest:
..................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of , 2002 (herein called the "Indenture"),
among the Company, as Issuer, BP p.l.c., as Guarantor (herein called the
"Guarantor"), and JPMorgan Chase Bank, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitation of rights, duties and immunities
thereunder of the Company, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to [$]..............].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ................. in any year commencing with the year .......... and
ending with the year ........... through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after ......................, 20......], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
.................., .....%, and if redeemed] during the 12-month period beginning
.................... of the years indicated,
17
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
------------ ------------------------- -------------- --------------------------
and thereafter at a Redemption Price equal to......% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............... in
any year commencing with the year ....... and ending with the year ......
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after ........................], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
...................... of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
------------ ---------------------------------------- --------------------------
and thereafter at a Redemption Price equal to......% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
18
[Notwithstanding the foregoing, the Company may not, prior to
......................., redeem any Securities of this series as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than .......% per annum.]
[The sinking fund for this series provides for the redemption on
....................... in each year beginning with the year ............. and
ending with the year ............ of [not less than] [$]..............
[("mandatory sinking fund") and not more than [$]..............] aggregate
principal amount of Securities of this series. [Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made -- in the inverse order in which they
become due.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
[If the Security is not subject to redemption, -- This Security is not
redeemable prior to Stated Maturity[, except pursuant to Section 1108 of the
Indenture. The date specified for the Securities of this series, for purposes of
said Section 1108, is .............] .]
[If the Security is not an Original Issue Discount Security, -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
19
series, to waive compliance by the Company or the Guarantor, or both, with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed or provided for herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$]........... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
20
Prior to due presentment of this Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes (subject to Section 307 of the
Indenture), whether or not this Security be overdue, and neither the Company,
the Guarantor, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture provides that the Company and the Guarantor, at the
Guarantor's option, (a) will be discharged from any and all obligations in
respect of the Securities (except for certain obligations to register the
transfer or exchange of Securities, replace stolen, lost or mutilated
Securities, maintain paying agencies and hold moneys for payment in trust) or
(b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or the Guarantor deposits, in trust, with the Trustee money
or Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal (including any mandatory sinking fund
payments) of, and (premium, if any) and interest on, the Securities on the dates
such payments are due in accordance with the terms of such Securities and
Guarantees, and certain other conditions are satisfied.
[If applicable insert-- Except in limited the limited circumstances
described in Section 305 of the Indenture, the Securities of this series shall
be issued in the form of one or more Global Securities and ................
Shall be the Depositary for such Global Security or Securities.] All terms used
in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
JPMorgan Chase Bank,
as Trustee
By.....................................
Authorized Officer
Section 205. Form of Guarantee
Guarantees to be endorsed on the Securities shall, subject to Section
201, be in substantially the form set forth below; words enclosed in brackets
shall be inserted if applicable:
GUARANTEE OF BP P.L.C.
For value received, BP p.l.c., a corporation duly organized and
existing under the laws of England (herein called the "Guarantor", which term
includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is
21
endorsed), hereby unconditionally guarantees to the Holder of the Security upon
which this Guarantee is endorsed and to the Trustee referred to in such
Indenture due and prompt payment of the principal of (and premium, if any) and
interest on such Security [and the due and prompt payment of the sinking fund
payments provided for therein,] when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of BP CAPITAL MARKETS P.L.C., a
corporation duly organized and existing under the laws of England and Wales
(herein called the "Company", which term includes any successor corporation
under such Indenture) punctually to make any such principal, premium, [or]
interest [or sinking fund] payment, the Guarantor hereby agrees to cause any
such payment to be made promptly when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby further agrees, subject to the limitations and
exceptions set forth below, that if any deduction or withholding for any present
or future taxes, assessments or other governmental charges of the jurisdiction
(or any political subdivision or taxing authority thereof or therein) in which
the Guarantor is incorporated, shall at any time be required by such
jurisdiction (or any such political subdivision or taxing authority) in respect
of any amounts to be paid by the Guarantor under this Guarantee, the Guarantor
will pay to the Holder of a Security of such series such additional amounts as
may be necessary in order that the net amounts paid to such Holder of such
Security who, with respect to any such tax, assessment or other governmental
charge, is not resident in such jurisdiction, after such deduction or
withholding, shall be not less than the amounts specified in such Security to
which such Holder is entitled; provided, however, that the Guarantor shall not
be required to make any payment of additional amounts (1) for or on account of
any such tax, assessment or governmental charge imposed by the United States or
any political subdivision or taxing authority thereof or therein or (2) for or
on account of:
(a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security of such series (where presentation is
required) for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
22
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal of,
or any interest on, the Securities of such series;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of the
Security of such series (i) to provide information concerning the nationality,
residence or identity of the Holder or such beneficial owner or (ii) to make any
declaration or other similar claim or satisfy any information or reporting
requirements, which, in the case of (i) or (ii), is required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which such Holder
would have been able to avoid by presenting such Security to another Paying
Agent;
(f) any tax, assessment or other governmental charge which is imposed
on a payment pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of November 26 and
27, 2000, or any law implementing such directive;
or (g) any combination of items (a), (b), (c), (d), (e) and (f) above;
nor shall additional amounts be paid with respect to any payment of the
principal of, or any interest on, any Security of such series to any Holder who
is a fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to such additional amounts had
it been the Holder of such Security.
The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Guarantor is organized, or any political
subdivision or taxing authority thereof or therein.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto, by the
Holder of such Security or such Trustee, or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Security or the interest rate thereon or impose or
increase any premium payable upon redemption thereof. The Guarantor hereby
waives diligence,
23
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to such Security or the
indebtedness evidenced thereby [or with respect to any sinking fund payment
required under such Security] and all demands whatsoever, and covenants that
this Guarantee will not be discharged except by payment in full of the principal
of (and premium, if any) and interest on such Security. This is a guarantee of
payment and not of collection.
The Guarantor shall be subrogated to all rights of the Holder of such
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on all Securities of the same series issued
under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal of (and premium, if any) and interest on the Security upon
which this Guarantee is endorsed at the times, place and rate, and in the coin
or currency prescribed therein.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of such Security shall have been manually
executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed manually or in facsimile by a person duly authorized in that behalf.
BP P.L.C.
..................................
AUTHORIZED SIGNATORY
Attest:
.....................................
Dated the date on the face hereof.
24
Section 206. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other form as may be
determined pursuant to Section 201:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Global Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in such limited
circumstances."
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution of the Company or the
Guarantor, as appropriate, and set forth in (or determined in the manner set
forth in) an Officers' Certificate of the Company or the Guarantor, as
appropriate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name such Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
25
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company,
including the date referred to in Section 1108;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
502;
(11) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency (including any composite currency) in
which payment of the principal of (and premium, if any) and interest on the
Securities of the series shall be denominated or payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for the purposes of the definition of "Outstanding" in Section 101;
(12) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a coin or currency (including any composite
currency) other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and condition upon which,
such election may be made;
(13) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the
26
manner in which such amount deemed to be the principal amount shall be
determined);
(14) if the amounts of payments of principal of (and premium, if any)
or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(15) the Guarantee of the Securities of such series pursuant to
Article Thirteen hereof;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, if so, the
Depositary for such Global Security or Securities;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) with respect to such series of Securities, the "Stated Intervals"
and the "Record Date" for purposes of Section 312(a) (in the case of
non-interest bearing Securities) and 316(c), respectively, of the Trust
Indenture Act;
(19) if additional amounts pursuant to Section 1010 will not be
payable by the Company or the Guarantor; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and number and except as may otherwise be provided in
or pursuant to such Board Resolutions and set forth (or determined in the manner
provided in) in such Officers' Certificates or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company or the Guarantor, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company or by the Secretary, a Deputy Secretary, an
Assistant Secretary or a Deputy Assistant Secretary of the Guarantor, as the
case may be, and delivered to the trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering,
the Board Resolution (or action taken pursuant thereto), Officers' Certificate
or supplemental indenture referred to above may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company in accordance with
other procedures specified in a Company Order as contemplated by the third
paragraph of Section 303.
27
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by one of its
Directors or senior officers and attested by one of its Directors or its
Secretary or one of its Assistant Secretaries. The signature of any of such
director or officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company or the Guarantor, as the
case may be, shall bind the Company or the Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company having endorsed thereon Guarantees executed by the Guarantor to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that in
the case of Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series. If the form
or terms of the Securities of the series or the form of the Guarantees endorsed
thereon have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to 601)
shall be fully protected in relying upon, an Opinion of Counsel stating,
28
(a) if the form of such Securities or Guarantees has been established
by or pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and
(d) that such Guarantees, when the Securities upon which they shall
have been endorsed shall have been authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Guarantor enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities or this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company and the Guarantor
of any of such Securities and the related Guarantees, the form and terms thereof
and the legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and the
29
other documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and that such Security or Guarantee is entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities substantially of the tenor of the definitive
Securities in lieu of which they are issued, and having endorsed thereon
Guarantees duly executed by the Guarantor substantially of the tenor of the
definitive Guarantees, which Securities and Guarantees may be printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities and the person duly
authorized thereto executing such Guarantees may determine, all as evidenced by
such execution.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series of authorized denominations and of a
like aggregate principal amount and tenor, having endorsed thereon Guarantees
duly executed by the Guarantor. Until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, each such Security having endorsed thereon a
Guarantee duly executed by the Guarantor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, each such Security having endorsed
thereon a Guarantee duly executed by the Guarantor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every 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 Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for
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Securities registered in the names of Persons other than the Depositary for such
series or its nominee if, but only if, (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such series or at
any time ceases to be a clearing agency registered as such under the Exchange
Act, as amended, and the Company and/or the Guarantor notify the Trustee that
they are unable to locate a qualified successor Depositary, (ii) the Company
and/or the Guarantor executes and delivers to the Trustee a Company Order that
such Global Security shall be so exchangeable or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Securities of such
series and beneficial owners of the Securities evidencing not less than 50% of
the aggregate unpaid principal amount of the Securities of such series advise
the Trustee and the Depositary through participants in writing that the
continuation of a book-entry system is no longer in the best interests of the
beneficial owners of the Securities of such series. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount, having endorsed thereon a Guarantee duly executed by the Guarantor, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount, having endorsed thereon a Guarantee duly executed by the Guarantor, and
bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security upon compliance with the
foregoing conditions.
Upon the issuance of any new Security 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.
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Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the Guarantor, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security or such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the
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Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Guarantor, the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
None of the Company, the Guarantor, the Trustee or any agent of the
Company, the Guarantor or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any
34
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company or the Guarantor may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company or the Guarantor may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures or as directed by a Company Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company or the Guarantor
and thereafter repaid to the Company or the Guarantor or discharged
from such trust, as provided in Section 1006) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
35
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Company and the Guarantor to any Authenticating Agent
under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1006 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1006, all
money and the proceeds of any Government Obligations deposited with the Trustee
pursuant to Section 401 or 403 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company or
the Guarantor acting as Paying Agent) as the Trustee may determine, of the
principal (and premium, if any) and interest to the Holders of the series of
Securities for the payment in respect of which such money has been deposited
with the Trustee.
The Company or the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 403 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Securities.
The obligations of the Company and the Guarantor pursuant to this paragraph
shall be joint and several.
36
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company or the Guarantor from time to time upon
Company Request any money or Government Obligations held by it as provided in
Section 403 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Discharge or
Covenant Defeasance, as the case may be, with respect to such Securities.
Section 403. Defeasance Upon Deposit of Moneys or Government Obligations.
At the Guarantor's option, either (a) the Company and the Guarantor
shall each be deemed to have been Discharged (as defined below) from its
respective obligations with respect to any series of Securities on the 91st day
after the applicable conditions set forth below have been satisfied or (b) the
Company and the Guarantor shall cease to be under any obligation to comply with
any term, provision or condition set forth in Sections 801 or 802 or any
covenant set forth in any indenture supplemental to this Indenture or otherwise
established pursuant to Section 301, and noncompliance with such Sections or
covenants shall not give rise to any Event of Default under Section 501(4) or
under Section 501(7) ("Covenant Defeasance"), with respect to any series of
Securities at any time after the applicable conditions set forth below have been
satisfied:
(1) the Company or the Guarantor shall have deposited or caused to be
deposited irrevocably with the Trustee or its agent as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series (i) money in an
amount, or (ii) Government Obligations of the government in the currency of
which the Securities of such series are denominated which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than the due date of any payment, money
in an amount, or (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal (including mandatory sinking fund payments) of and interest on,
the outstanding Securities of such series on the dates such installments of
interest or principal are due or to and including the Redemption Date
irrevocably designated by the Guarantor pursuant to subparagraph (5)
hereof;
(2) if the Securities of such series are then listed on the New York
Stock Exchange, the Company or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that the exercise of the option
under this Section 403 would not cause such Securities to be delisted;
(3) no Event of Default or event which with notice or lapse of time
would become an Event of Default under Section 501(1), (2), (3), (5) or (6)
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
37
(4) the Company or the Guarantor shall have delivered to the Trustee
an Opinion of Counsel to the effect that holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of the exercise of the option under this Section 403
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option had not been exercised, and, in the case of Securities being
Discharged, such opinion shall be accompanied by a private letter ruling to
that effect received from the United States Internal Revenue Service or a
revenue ruling pertaining to a comparable form of transaction to that
effect published by the United States Internal Revenue Service;
(5) if the Company or the Guarantor has deposited or caused to be
deposited money or Government Obligations to pay or discharge the principal
of (and premium, if any) and interest on the Outstanding Securities of a
series to and including a Redemption Date pursuant to subparagraph (1)
hereof, such Redemption Date shall be irrevocably designated by a Board
Resolution delivered to the Trustee on or prior to the date of deposit of
such money or Government Obligations and such Board Resolution shall be
accompanied by an irrevocable Company Request that the Trustee give notice
of such redemption in the name and at the expense of the Company not less
than 30 nor more than 60 days prior to such Redemption Date in accordance
with Section 1104; and
(6) the Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Discharge or Covenant Defeasance
have been complied with.
"Discharged" means that the Company and Guarantor shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities of such series and the Guarantees endorsed thereon and to have
satisfied all the obligations under this Indenture relating to the Securities of
such series and the Guarantees endorsed thereon (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
(A) the rights of holders of Securities of such series to receive, from the
trust fund described in clause (1) above payment of the principal of and the
interest on such Securities when such payments are due; (B) the Company's or the
Guarantor's obligations, as the case may be, with respect to such Securities
under Sections 305, 306, 1002, 1005 and 1006; and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
Notwithstanding any Covenant Defeasance with respect to Sections 801
and 802, any corporation or Person that would otherwise have been required to
assume the obligations of the Company or the Guarantor pursuant to said Sections
shall be required, as a condition to any merger, consolidation, amalgamation,
transfer, conveyance or lease contemplated thereby, to assume the obligations of
the Company or the Guarantor, as the case may be, to the Trustee under Sections
402 and 607.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
a particular series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or the Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law of the United Kingdom or (B) a decree
or order adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition filed against the Company or the
Guarantor seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or the Guarantor under any applicable law of
the United Kingdom, or appointing without the consent of the Company or the
Guarantor a custodian, receiver, liquidator, assignee, trustee, sequestrate
or other similar official of the Company or the Guarantor or of the whole
or substantially all of its property, or ordering the winding up or
liquidation of its affairs, and the
39
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days;
(6) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law of the United Kingdom or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or the Guarantor in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law of
the United Kingdom or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
bankruptcy, insolvency, reorganization or other similar law of the United
Kingdom, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrater or similar official of the Company or the
Guarantor or of the whole or substantially all of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or the
Guarantor in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501, (i) with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established, which
record date shall be at the close of business on the day the Trustee receives
such Notice of Default, and (ii) with respect to any other series of Securities,
the Trustee may, but shall not be obligated to, establish a record date, in each
case for the purpose of determining Holders of Outstanding Securities of such
series entitled to join in such Notice of Default. If such record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided, however, that
unless Holders of at least the requisite principal amount (which amount shall be
25% in the case of subclause (4) of this Section) of the Outstanding Securities
of such series, or their proxies, shall have joined in such Notice of Default
prior to the day which is 90 days after such record date, such Notice of Default
and the Act of Holders, or their proxies, joining in such Notice of Default
shall automatically and without further action by any Holders be cancelled and
of no effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, (i) after expiration of such 90-day period, a new Notice of
Default to the same effect as that cancelled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period in respect of any
Notice of Default with respect to a prospective Event of Default with respect to
Securities of such series, an additional Notice of Default with respect to any
other prospective Event of Default (other than a prospective Event of Default as
to which such a 90-day period has not expired) with respect to Securities of
such series, in either of which events a new record date shall or may, as the
case may be,
40
be established pursuant to the provisions of this Section 501 in respect of such
new or additional Notice of Default.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company and the Guarantor (and to the Trustee if given by
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
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or rescission and annulment thereof, (i) with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established, which record date shall be at the close of
business on the day the Trustee receives such notice, and (ii) with respect to
any other series of Securities, the Trustee may, but shall not be. obligated to,
establish a record date, in each case for the purpose of determining Holders of
Outstanding Securities of such series entitled to join in such notice. If such
record date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
however, that unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, and the Act of Holders, or their
proxies, joining in such notice shall automatically and without further action
by any Holders be cancelled and of no effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, of Securities of any series from
giving, (i) after expiration of such 90-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof, as the case
may be, to the same effect as that cancelled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period in respect of any
written notice of declaration of acceleration or rescission and annulment
thereof, as the case may be, with respect to any Event of Default with respect
to Securities of such series, an additional written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, with
respect to any other Event of Default (other than an Event of Default as to
which such a 90-day period has not expired) with respect to Securities of such
series, in either of which events a new record date shall or may, as the case
may be, be established pursuant to the provisions of this Section 502 in respect
of such new or additional written notice.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on
42
any overdue interest, at the rate or rates prescribed therefor in such
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.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, the Guarantor or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to 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 Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
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.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company, the Guarantor of any other
obligor upon the Securities or the property of the Company, the Guarantor or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities 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 or the Guarantor for the payment of overdue
principal or interest) 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, the Trustee shall be authorized,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
in accordance with the terms thereof and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
43
and any custodian, receiver, assignee, trustee, liquidator, sequestrate or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities 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, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 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 (or premium,
if any) or interest, upon presentation of the Securities 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 due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities 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 Securities for principal (and premium, if
any) and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series 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
44
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) 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 Securities of that series;
it being understood and intended that no one or more of such Holders 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 of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on 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.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company and the Guarantor shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
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
Securities of such series, provided that
(1) Such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, (i) with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established, which
record date shall be at the close of business on the day the Trustee receives
such notice, and (ii) with respect to any other series of Securities, the
Trustee may, but shall not be obligated to, establish a record date, in each
case for the purpose of determining Holders of Outstanding Securities of such
series entitled to join in such notice. If such record date is fixed, the
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date;
46
provided, however, that unless the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall have joined
in such notice prior to the date which is 90 days after such record date, such
notice and the Act of Holders, or their proxies, joining in such notice shall
automatically and without further action by any Holders be cancelled and of no
effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, (i) after expiration of such 90-day period, a new notice to
the same effect as that cancelled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period in respect of any notice, a new
notice giving directions contrary to or otherwise different from such notice in
either of which events a new record date shall or may, as the case may be, be
established pursuant to the provisions of this Section 512 in respect of such
new notice.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal and (or premium, if any) or
interest on any Security of such series, or
(2) in respect of covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
With respect to any series of Securities, the Company may, but shall
not be obligated to, establish a record date for the purpose of determining the
Persons entitled to waive any past default hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to waive any default hereunder, whether or not such
Holders remain Holders after such record date; provided, however, that unless
such Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall have waived such default prior to the date which
is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be cancelled and of no
effect.
Upon any such waiver, such default shall cease to exist and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security 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
47
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, the Guarantor or the Trustee.
Section 515. Waiver of Stay or Extension Laws.
The Company and the Guarantor each covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
the Guarantor each (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
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. 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 602. Notice of Defaults.
Within 90 days after the occurrence known to the Trustee of any default
hereunder with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of all such defaults
hereunder, unless such default shall have been cured or waived provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such
48
notice is in the interest of the Holders of Securities of such series; and
provided, further, that, in the case of any default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors of the Company or the
Guarantor shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting 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 Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(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, 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 relevant books, records
49
and premises of the Company and the Guarantor, personally or by agent or
attorney; and
(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.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company or the Guarantor, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. 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 or the Guarantor, as the case may be.
Section 607. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) To pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and
50
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability 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 costs and expenses of
defending itself against (but not of instituting) any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
such Securities.
The obligations of the Company and the Guarantor under this Section
shall be joint and several.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall, as soon as practicable
and in any event within 90 days after ascertaining that it has such conflicting
interest, and if the Event of Default (as defined in Section 501 hereof) to
which such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, either eliminate such
conflicting interest or resign to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series or by virtue of being a trustee
under this Indenture and under any indenture listed in Annex A hereto.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one and only one Trustee hereunder with
respect to the Securities of each series, which may be a Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, and has a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or state authority. 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 and to
the extent permitted by the Trust Indenture Act, 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 with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions
51
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. 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 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) In accordance with the requirements of Section 315(e) of the Trust
Indenture Act, the Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or the Guarantor or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or the
Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, subject to the requirements of the Trust Indenture Act 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 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 Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it
52
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the Guarantor 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 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company, the Guarantor 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 Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
53
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
cotrustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company and the Guarantor or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor 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 (a) or (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 the requirements of the Trust Indenture Act.
Section 612. Merger, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or with which it
may be consolidated, or any corporation resulting from any merger 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 under the requirements of the Trust
Indenture Act 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 Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
54
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company,
the Guarantor or any other obligor upon the Securities, the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company, the Guarantor or other such obligor.
Section 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, 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
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Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company and the Guarantor agree to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
JPMorgan Chase Bank,
As Trustee
By...............................
As Authenticating Agent
By...............................
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders.
The Company and the Guarantor will furnish or cause to be furnished to
the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date for any series of Securities at the time Outstanding (or after each of
the dates to be specified for such purpose for non-interest bearing
Securities as contemplated by Section 301), a list, in such form as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities of such series as of such Regular Record Date, and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company or the Guarantor of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. 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 contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company, the Guarantor and the Trustee that neither the Company
nor the Guarantor nor the Trustee nor any agent of any of them shall be held
accountable by reason of any disclosure of information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall, within 60 days after each January 15 following
the date of this Indenture, transmit annually by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report with respect
to any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period, no such report
need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship specified
in Section 3l0(b)(l) through Section 3l0(b)(l0) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances to the Holders of Securities of any series
if such advances so remaining unpaid
57
aggregate not more than 1/2 of 1% of the principal amount of the Securities
of such series Outstanding on thE date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company or the Guarantor (or by any other
obligor on the Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 311(b) (2), (3),
(4) or (6) of the Trust Indenture Act;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances to the Holders of Securities of any series if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities of such series Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company and the
Guarantor. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
Section 704. Reports by Company and Guarantor.
The Company and the Guarantor shall:
(1) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, 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
58
time to time by rules and regulations prescribe) which the Company or the
Guarantor may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company or the
Guarantor is not required to file information, documents or reports
pursuant to either of said 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;
(2) file with the Trustee and the Commission, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
in such Act; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company or the Guarantor, as the case may be,
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms.
Neither the Company nor the Guarantor shall consolidate with or
amalgamate with or merge into any other corporation or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and
neither the Company nor the Guarantor shall permit any Person to consolidate or
amalgamate with or merge into it nor shall the Company permit any Person to
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) in case the Company or the Guarantor, as the case may be, shall
consolidate or amalgamate with or merge into another corporation or convey,
transfer or lease its properties and assets substantially as an entirety to
any Person, the corporation formed by such consolidation or amalgamation or
into which the Company or the Guarantor, as the case may be, is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor, as the case may be,
substantially as an entirety shall be a corporation organized and existing
under the laws of England or some other political subdivision of the United
Kingdom, the United States or a political subdivision thereof, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
59
in the case of the Company, the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed, and, in the case of the Guarantor, the due and
punctual performance of the Guarantees and the performance of every
covenant of this Indenture on the part of the Guarantor to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or the
Guarantor, as the case may be, or any of its Subsidiaries as a result of
such transaction as having been incurred by the Company or the Guarantor,
as the case may be, or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company or the Guarantor, as the case may be, has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, amalgamation, merger, conveyance, transfer
or lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Corporation Substituted.
Upon any consolidation or amalgamation by the Company or the Guarantor,
as the case may be, with or merger by the Company or the Guarantor, as the case
may be, into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company or the Guarantor, as the case may be,
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or amalgamation or into which the
Company or the Guarantor, as the case may be, is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or the Guarantor, as the
case may be, under this Indenture with the same effect as if such successor
corporation had been named as the Company or the Guarantor, as the case may be,
herein, and thereafter, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities or the Guarantees, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, the Guarantor, when authorized by or pursuant to a Board
Resolution and the Trustee, at any time and from time to time, may enter into
one or more indentures
60
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to the Company
or the Guarantor and the assumption by any such successor of the covenants
of the Company or the Guarantor herein and in the Securities or the
Guarantees; or
(2) to add to the covenants of the Company or of the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add any additional present, future or contingent payment
obligation of the Guarantor under any Guarantee for the benefit of the
Holders of all or any series of Securities (and if such additional payment
obligations are to be for the benefit of less than all series of
Securities, stating that such additional payment obligations are expressly
being included solely for the benefit of such series); or
(5) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
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 Securities in uncertificated form; or
(6) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided,
however, that any such addition, change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(7) to establish the form or terms of Securities of any series or the
form of Guarantees as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
61
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided, however, that such action
shall not adversely affect the interests of the Holders of Securities of
any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by a Board Resolution,
the Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1009, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8), or
(4) change in any manner adverse to the interests of the Holders of
Securities the terms and conditions of the obligations of the Guarantor in
respect
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of the due and prompt payment of the principal thereof (and premium, if
any) and interest thereon or any sinking fund payments provided in respect
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 Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
With respect to any series of Securities, the Company may, but shall
not be obligated to, establish a record date for the purpose of determining the
Persons entitled to consent to any indenture supplemental hereto. If a record
date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date; provided, however, that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. 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 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
63
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company and
the Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Company and the Guarantor, to any
such supplemental Indenture may be prepared and executed by the Company, the
Guarantees endorsed thereon may be executed by the Guarantor and such Securities
may be authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
PARTICULAR COVENANTS OF COMPANY AND GUARANTOR
Section 1001. Payment of Principal, Premium and Interest by Company.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency by Company.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes or where such notices or demands may
be served and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
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Section 1003. Reserved.
Section 1004. Reserved.
Section 1005. Maintenance of Office or Agency by Guarantor.
The Guarantor will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment under the Guarantees endorsed thereon and where
notices and demands to or upon the Guarantor in respect of the Guarantees
endorsed on the Securities of that series and this Indenture may be served. The
Guarantor 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
Guarantor shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Guarantor hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for such purpose or where such notices or demands may be served
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Guarantor 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 1006. Money for Securities Payments to Be Held in Trust.
If the Company or the Guarantor shall at any time act as Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the 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
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
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(i) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent and
(ii) during the continuance of any such default by the Company (or any
other obligor on the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent for payment in respect of the Securities of such
series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company or the Guarantor, in trust for the payment of the principal of
(and premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company or the Guarantor, as the
case may be, on Company Request, or (if then held by the Company or the
Guarantor) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company and
the Guarantor for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
or the Guarantor as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company or the Guarantor, as the case may be.
Section 1007. Corporate Existence.
Subject to Article Eight, the Company and the Guarantor will preserve
and keep in full force and effect their respective corporate existences.
Section 1008. Statement by Executive Officers as to Compliance.
The Company and the Guarantor will each deliver to the Trustee, within
120 days after the end of each fiscal year of the Guarantor ending after the
date hereof, an Executive Officer's Certificate (which need not comply with the
requirements of Section 102), stating whether or not to the best knowledge of
the signers thereof the Company or the Guarantor, as the case may be, has
complied with all conditions and
66
covenants on their part contained in this Indenture, and if such signers have
obtained knowledge of any default by the Company or the Guarantor in the
performance, observance or fulfillment of any such condition or covenant,
specifying all such defaults and the nature and status thereof of which they may
have knowledge. For the purpose of this Section 1008, such compliance with the
terms, conditions and covenants of the Indenture shall be determined without
regard to any period of grace or requirement of notice provided hereunder.
Section 1009. Waiver of Certain Covenants.
The Company and the Guarantor may omit in any particular instance to
comply with any term, provision or condition set forth in any covenant set forth
in any indenture supplemental to this Indenture or otherwise established
pursuant to Section 301 with respect to the Securities of any series or the
Guarantees endorsed thereon if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the Guarantor and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
With respect to any series of Securities, the Company may, but shall
not be obligated to, establish a record date for the purpose of determining the
Persons entitled to waive any such term, provision or condition. If a record
date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to waive any such term,
provision or condition hereunder, whether or not such Holders remain Holders
after such record date; provided, however, that unless the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall
have waived such term, provision or condition prior to the date which is 90 days
after such record date, any such waiver previously given shall automatically and
without further action by any Holder be cancelled and of no effect.
Section 1010. Additional Amounts.
Unless otherwise specified in any Board Resolution of the Company or
the Guarantor establishing the terms of Securities of a series or the Guarantees
relating thereto in accordance with Section 301, if any deduction or withholding
for any present or future taxes, assessments or other governmental charges of
the jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the Company or the Guarantor is incorporated, shall at any
time be required by such jurisdiction (or any such political subdivision or
taxing authority) in respect of any amounts to be paid by the Company of
principal of or interest on a Security of any series, or by the Guarantor under
the Guarantees, the Company or the Guarantor, as the case may be, will pay to
the Holder of a Security of such series such additional amounts as may be
necessary in order that the net amounts paid to such Holder of such Security
who, with respect to any such tax, assessment or other governmental charge, is
not resident in such jurisdiction, after such
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deduction or withholding, shall be not less than the amounts specified in such
Security to which such Holder is entitled; provided, however, that the Company
or the Guarantor, as the case may be, shall not be required to make any payment
of additional amounts (1) for or on account of any such tax, assessment or
governmental charge imposed by the United States or any political subdivision or
taxing authority thereof or therein or (2) for or on account of:
(a) any tax, assessment or other governmental charge which would not
have been imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation) and the taxing jurisdiction or any
political subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein or
(ii) the presentation of a Security of such series (where presentation is
required) for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments of (or in respect of) principal of,
or any interest on, the Securities of such series;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of the
Security of such series (i) to provide information concerning the nationality,
residence or identity of the Holder or such beneficial owner or (ii) to make any
declaration or other similar claim or satisfy any information or reporting
requirements, which, in the case of (i) or (ii), is required or imposed by a
statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which such Holder
would have been able to avoid by presenting such Security to another Paying
Agent;
(f) any tax, assessment or other governmental charge which is imposed
on a payment pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of November 26 and
27, 2000, or any law implementing such directive; or
(g) any combination of items (a), (b), (c), (d), (e) and (f) above; nor
shall additional amounts be paid with respect to any payment of the principal
of, or any interest
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on, any Security of such series to any Holder who is a fiduciary or partnership
or other than the sole beneficial owner of such payment to the extent such
payment would be required by the laws of the jurisdiction (or any political
subdivision or taxing authority thereof or therein) to be included in the income
for tax purposes of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to such additional amounts had it been the Holder of such Security.
The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Company or the Guarantor, as the case may be,
is organized, or any political subdivision or taxing authority thereof or
therein; provided, however, that such payment of additional amounts may be
subject to such further exceptions as may be established in the terms of such
Securities established as contemplated by Section 301.
Subject to the foregoing provisions, whenever in this Indenture there
is mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the terms of the Securities of a series established as contemplated
by Section 301 do not specify that additional amounts pursuant to the Section
will not be payable by the Company or the Guarantor, at least 10 days prior to
the first Interest Payment Date with respect to that series of Securities (or if
the Securities of that series will not bear interest prior to Maturity, the
first day on which a payment of principal and any premium is made), and at least
10 days prior to each date of payment of principal and any premium or interest
if there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company or the Guarantor will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series or under the related
Guarantees shall be made to Holders of Securities of that series without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series or the related Guarantees. If
any such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company or the Guarantor (only if a
payment under said Guarantees is then due), as the case may be, will pay to the
Trustee or such Paying Agent or Paying Agents the additional amounts required by
this Section.
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Each of the Company and the Guarantor covenants to indemnify each of
the Trustee and any Paying Agent for, and to hold each of them harmless against,
any loss, liability or expense arising out of or in connection with actions
taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section, except to the extent that any such loss,
liability or expense is due to its own negligence or bad faith.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company, the Company shall, at least 45 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (b)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed
70
in whole or in part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination
for such Security).
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price or, if not then ascertainable, the manner of
calculation thereof,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1006) an amount of
money sufficient to pay the
71
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or 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 Security
surrendered; provided, that if a Global Security is so surrendered, such new
Security so issued shall be a new Global Security in a denomination equal to the
unredeemed portion of the principal of the Global Security so surrendered.
Section 1108. Optional Redemption Due to Changes in Tax Treatment.
With respect to each series of Securities, if, as the result of any
change in or any amendment to the laws of the United Kingdom, or of any
political subdivision or taxing authority thereof or therein, affecting
taxation, or any change in an application or interpretation of such laws either
generally or in relation to any particular series of Securities, which change or
amendment to such laws becomes effective on or after the date specified for such
series pursuant to Section 301(7) or which change in application or
interpretation is notified to the Company or the Guarantor on or after such
date, it is determined by the Company or the Guarantor that the Company or the
Guarantor would be required to make payments of additional amounts (i) in
respect of interest on the next succeeding Interest Payment Date pursuant to the
terms of the Securities or the
72
Guarantees endorsed on the Securities of such series, as applicable, assuming a
payment in respect of such interest were required to be made pursuant thereto on
such Interest Payment Date, or (ii) in respect of the principal of any series of
Original Issue Discount Securities at the date of such determination pursuant to
the terms of the Securities or the Guarantees endorsed on the Securities of such
series, as applicable, assuming a payment in respect of such principal were
required to be made pursuant thereto on such date, in either case the Company or
the Guarantor may, at its option, redeem such series of Securities in whole at
any time (except in the case of a series of Securities that has a variable rate
of interest, which may be redeemed on any Interest Payment Date) at a Redemption
Price equal to 100 percent of the principal amount thereof plus accrued interest
to the date fixed for redemption (except in the case of any series of
Outstanding Original Issue Discount Securities which may be redeemed at the
Redemption Price specified by the terms of such series). Prior to any redemption
of such a series of Securities pursuant to this Section, the Company or the
Guarantor shall provide the Trustee with an Opinion of Counsel that the
conditions precedent to the right of the Company or the Guarantor to redeem such
series of Securities pursuant to this Section have occurred. Such Opinion of
Counsel shall be based on the laws and application and interpretation thereof in
effect on the date of such opinion or to become effective on or before the next
succeeding Interest Payment Date.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be
73
made pursuant to the terms of such Securities as provided for by the terms of
such series, provided, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating the basis for such credit and that such
Securities have not been previously so credited and will also deliver to the
Trustee any Securities to be so delivered. Not more than 60 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
GUARANTEES
Section 1301. Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security of each series authenticated and delivered by the Trustee and to the
Trustee the due and prompt payment of the principal of (and premium, if any) and
interest on such Security and the due and prompt payment of any sinking fund
payments provided for pursuant to the terms of such Security, when and as the
same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, according to the
terms of such Security and of this Indenture. In case of the failure of the
Company punctually to make any such principal, premium, interest or sinking fund
payment, the Guarantor hereby agrees to cause any such payment to be made
promptly when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security of any series or this
Indenture, any failure to enforce the provisions of any Security of any series
or this Indenture, or any waiver, modification or indulgence
74
granted to the Company with respect thereto, by the Holder of any Security of
any series or the Trustee, or any other circumstance which may otherwise
constitute a legal or equitable discharge of a surety or guarantor; provided
however, that, notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the principal
amount of a Security or the interest rate thereon or increase any premium
payable upon redemption thereof. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to any Security or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of a Security issued under this Indenture and all
demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to any Security except by payment in full of the principal of (and
premium, if any) and interest on such Security. The Guarantees shall constitute
guarantees of payment and not of collection.
Section 1302. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of a
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on all Securities of the relevant series
shall have been paid in full.
Section 1303. Execution and Delivery of Guarantees.
To evidence its guarantee set forth in Section 1301, the Guarantor
hereby agrees to execute the Guarantee in a form established pursuant to Section
205, to be endorsed on each Security authenticated and delivered by the Trustee.
Each such Guarantee shall be signed manually or by facsimile by a person duly
authorized thereto by Board Resolution of the Guarantor.
Guarantees bearing the facsimile signature of any individual who was at
any time such an authorized person of the Guarantor shall bind the Guarantor,
notwithstanding that such individual shall have ceased to be such an authorized
person prior to the authentication and delivery of the Securities upon which
such Guarantees are endorsed or was not such an authorized person at the date of
such Securities.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor.
* * *
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.
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IN WITNESS WHEREOF, the Company and the Trustee hereto have caused this
Indenture to be duly executed, and the Guarantor has caused this Indenture to be
signed on its behalf by ▇▇▇▇ ▇▇▇▇▇▇, its duly appointed attorney, all as of the
day and year first above written.
BP CAPITAL MARKETS P.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager, Group Finance and
Capital Markets
Attest:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Company Secretary
BP p.l.c.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-fact
JPMORGAN CHASE BANK, AS TRUSTEE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Attest:
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Trust Officer
2