#20149879.3 CONFORMED COPY
ARROW ELECTRONICS, INC.
and
BANK OF MONTREAL TRUST COMPANY,
Trustee
__________________________________________________
Indenture
Dated as of January 15, 1997
__________________________________________________
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions 1
Section 1.2 Other Definitions 6
Section 1.3 Incorporation By Reference Of Trust Indenture Act 7
Section 1.4 Rules Of Construction 7
ARTICLE 2
THE SECURITIES
Section 2.1 Form 8
Section 2.2 Execution And Authentication 8
Section 2.3 Amount Unlimited; Issuable In Series 9
Section 2.4Denomination And Date Of Securities; Payments Of Interest 12
Section 2.5 Registrar And Paying Agent; Agents Generally 13
Section 2.6 Paying Agent To Hold Money In Trust 13
Section 2.7 Transfer And Exchange 14
Section 2.8 Replacement Securities 16
Section 2.9 Outstanding Securities 17
Section 2.10 Temporary Securities 17
Section 2.11 Cancellation 18
Section 2.12 CUSIP Numbers 18
Section 2.13 Defaulted Interest 18
Section 2.14 Series May Include Tranches 18
ARTICLE 3
REDEMPTION
Section 3.1 Applicability Of Article 19
Section 3.2 Notice Of Redemption; Partial Redemptions 19
Section 3.3 Payment Of Securities Called For Redemption 20
Section 3.4 Exclusion Of Certain Securities
From Eligibility For Selection For Redemption 21
Section 3.5 Mandatory And Optional Sinking Funds 21
ARTICLE 4
COVENANTS
Section 4.1 Payment Of Securities 24
Section 4.2 Maintenance Of Office Or Agency 24
Section 4.3 Negative Pledge 25
Section 4.4 Certain Sale And Lease-Back Transactions 26
Section 4.5 Certificate To Trustee 27
Section 4.6 Reports By The Company 27
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge, Etc. 28
Section 5.2 Successor Substituted 28
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1 Events Of Default 29
Section 6.2 Acceleration 30
Section 6.3 Other Remedies 31
Section 6.4 Waiver Of Past Defaults 31
Section 6.5 Control By Majority 32
Section 6.6 Limitation On Suits 32
Section 6.7 Rights Of Holders To Receive Payment 33
Section 6.8 Collection Suit By Trustee 33
Section 6.9 Trustee May File Proofs Of Claim 33
Section 6.10 Application Of Proceeds 33
Section 6.11 Restoration Of Rights And Remedies 34
Section 6.12 Undertaking For Costs 34
Section 6.13 Rights And Remedies Cumulative 35
Section 6.14 Delay Or Omission Not Waiver 35
ARTICLE 7
TRUSTEE
Section 7.1 General 35
Section 7.2 Certain Rights Of Trustee 35
Section 7.3 Individual Rights Of Trustee 37
Section 7.4 Trustee's Disclaimer 37
Section 7.5 Notice Of Default 37
Section 7.6 Reports By Trustee To Holders 38
Section 7.7 Compensation And Indemnity 38
Section 7.8 Replacement Of Trustee 39
Section 7.9 Successor Trustee By Merger, Etc. 40
Section 7.10 Eligibility 40
Section 7.11 Money Held In Trust 40
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Defeasance Within One Year Of Payment 40
Section 8.2 Defeasance 41
Section 8.3 Covenant Defeasance 42
Section 8.4 Application Of Trust Money 43
Section 8.5 Repayment To Company 43
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent Of Holders 44
Section 9.2 With Consent Of Holders 44
Section 9.3 Revocation And Effect Of Consent 45
Section 9.4 Notation On Or Exchange Of Securities 46
Section 9.5 Trustee To Sign Amendments, Etc. 46
Section 9.6 Conformity With Trust Indenture Act 46
ARTICLE 10
MISCELLANEOUS
Section 10.1 Trust Indenture Act Of 1939 47
Section 10.2 Notices 47
Section 10.3 Certificate And Opinion As To Conditions Precedent 48
Section 10.4 Statements Required In Certificate Or Opinion 48
Section 10.5 Evidence Of Ownership 49
Section 10.6 Rules By Trustee, Paying Agent Or Registrar 50
Section 10.7 Payment Date Other Than A Business Day 50
Section 10.8 Governing Law 50
Section 10.9 No Adverse Interpretation Of Other Agreements 50
Section 10.10 Successors 50
Section 10.11 Duplicate Originals 50
Section 10.12 Separability 51
Section 10.13 Table Of Contents, Headings, Etc. 51
Section 10.14 Incorporators, Shareholders,
Officers And Directors Of Company
Exempt From Individual Liability 51
Section 10.15 Judgment Currency 51
INDENTURE, dated as of January 15, 1997, between Arrow
Electronics, Inc., a New York corporation (the "Company"), and Bank
of Montreal Trust Company (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from
time to time of its debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities")
up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture and to
provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee
mutually covenant and agree for the equal and proportionate benefit
of the respective holders from time to time of the Securities or of
any and all series thereof and of the coupons, if any, appertaining
thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent
or Authenticating Agent.
"Attributable Debt" means, when used in connection with a
sale and lease-back transaction referred to in Section 4.4, on any
date as of which the amount thereof is to be determined, the product
of (a) the net proceeds from such sale and lease-back transaction
multiplied by (b) a fraction, the numerator of which is the number
of full years of the term of the lease relating to the property
involved in such sale and lease-back transaction (without regard to
any options to renew or extend such term) remaining on the date of
the making of such computation and the denominator of which is the
number of full years of the term of such lease measured from the
first day of such term.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition) and in the case of London, will, if
practicable, be the Financial Times (London Edition) and published
in an official language of the country of publication customarily
published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or
47
London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the
board of directors of the Company or any authorized committee
thereof, certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted and to be in full force and effect
on the date of certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to
close in The City of New York or in the city in which the Corporate
Trust Office is located, with respect to any Security the interest
on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United
States dollars, in the principal financial center of the country of
the specified currency.
"Capital Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's capital
stock or equity, including, without limitation, all Common Stock and
Preferred Stock.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or,
if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's common
stock, whether now outstanding or issued after the date of this
Indenture, including, without limitation, all series and classes of
such common stock.
"Company" means the party named as such in the first
paragraph of this Indenture until a successor replaces it pursuant
to Article 5 of this Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" means total assets
after deducting therefrom all current liabilities and intangible
assets as set forth in the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with
GAAP.
"Corporate Trust Office" means the office of the Trustee
at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at
the date of this Indenture, located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President.
"Default" means any Event of Default as defined in Section
6.1 and any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered
Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.3 until a successor Depositary shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each
Person who is then a Depositary hereunder, and if at any time there
is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with
respect to the Registered Global Securities of that series. The
initial Depositary shall be The Depository Trust Company, New York,
New York.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exempted Debt" means the sum, without duplication, of the
following items outstanding as of the date Exempted Debt is being
determined: (i) indebtedness of the Company and its Restricted
Subsidiaries incurred after the date of this Indenture and secured
by liens created or assumed or permitted to exist pursuant to
Section 4.3(b) and (ii) Attributable Debt of the Company and its
Restricted Subsidiaries in respect of all sale and lease-back
transactions with regard to any Principal Property entered into
pursuant to Section 4.4(b).
"Funded Debt" means all indebtedness for money borrowed,
including purchase money indebtedness, having a maturity of more
than one year from the date of its creation or having a maturity of
less than one year but by its terms being renewable or extendible,
at the option of the obligor in respect thereof, beyond one year
from the date of its creation.
"GAAP" means generally accepted accounting principles in
the United States of America at the date of any computation required
or permitted hereunder.
"Holder" or "Securityholder" means the registered holder
of any Security with respect to Registered Securities and the bearer
of any Unregistered Security or any coupon appertaining thereto, as
the case may be.
"Indenture" means this Indenture as originally executed or
as it may be amended or supplemented from time to time by one or
more indentures supplemental to this Indenture entered into pursuant
to the applicable provisions of this Indenture and shall include the
forms and terms of the Securities of each series established as
contemplated pursuant to Sections 2.1 and 2.3.
"Investment" means any investment in any Person, whether
by means of share purchase, capital contribution, loan, time deposit
or otherwise.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind,
or any other type of preferential arrangement that has the practical
effect of creating a security interest, in respect of such asset.
For the purposes of this Indenture, the Company or any Subsidiary
shall be deemed to own subject to a Lien any asset that it has
acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Officer" means, with respect to the Company, the Chairman
of the Board of Directors, the President or Chief Executive Officer,
any Vice President, the Chief Financial Officer, the Treasurer or
any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a certificate signed in the
name of the Company (i) by the Chairman of the Board of Directors,
the President or Chief Executive Officer or a Vice President and
(ii) by the Chief Financial Officer, the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary, complying
with Section 10.4 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this
Indenture) the statements provided in Section 10.4, if and to the
extent required thereby.
"Opinion of Counsel" means a written opinion signed by
legal counsel, who may be an employee of or counsel to the Company,
satisfactory to the Trustee and complying with Section 10.4. Each
such opinion shall comply with Section 314 of the Trust Indenture
Act and include the statements provided in Section 10.4, if and to
the extent required thereby.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security
or (b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if
any, thereon, the stated maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such
Securities.
"Person" means an individual, a corporation, a
partnership, a limited liability company, an association, a trust or
any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of such Person's
preferred or preference stock, whether now outstanding or issued
after the date of this Indenture, including, without limitation, all
series and classes of such preferred or preference stock.
"Principal" of a Security means the principal amount of,
and, unless the context indicates otherwise, includes any premium
payable on, the Security.
"Principal Property" means any manufacturing or processing
plant or warehouse owned at the date hereof or hereafter acquired by
the Company or any Restricted Subsidiary of the Company which is
located within the United States and the gross book value of which
(including related land and improvements thereon and all machinery
and equipment included therein without deduction of any depreciation
reserves) on the date as of which the determination is being made
exceeds 2% of Consolidated Net Tangible Assets, other than (i) any
such manufacturing or processing plant or warehouse or any portion
thereof (together with the land on which it is erected and fixtures
comprising a part thereof) which is financed by industrial
development bonds which are tax exempt pursuant to Section 103 of
the Internal Revenue Code (or which receive similar tax treatment
under any subsequent amendments thereto or any successor laws
thereof or under any other similar statute of the United States),
(ii) any property which in the opinion of the Company's Board of
Directors is not of material importance to the total business
conducted by the Company as an entirety, or (iii) any portion of a
particular property which is similarly found not to be of material
importance to the use or operation of such property.
"Registered Global Security" means a Security evidencing
all or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.2, and
bearing the legend prescribed in Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust
officer, any assistant trust officer, or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter
is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company
(i) substantially all the property of which is located, or
substantially all the business of which is carried on, within the
United States, and (ii) which owns Principal Property; provided,
however, that any Subsidiary may be declared a Restricted Subsidiary
by Board Resolution, effective as of the date such Board Resolution
is adopted; provided further, that any such declaration may be
rescinded by further Board Resolution, effective as of the date such
further Board Resolution is adopted.
"Securities" means any of the securities, as defined in
the first paragraph of the recitals hereof, that are authenticated
and delivered under this Indenture and, unless the context indicates
otherwise, shall include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as
amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than
50% of the outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of
such Person.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in
accordance with the provisions of Article 7 and thereafter means
such successor.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as it may be
amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in
each applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy
Reform Act of 1978, as amended and as codified in Title 11 of the
United States Code, as amended from time to time hereafter, or any
successor federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or
(ii) obligations of an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for
the election of directors, managers or other voting members of the
governing body of such Person.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the
Securities of a series are issuable from time to time, on a Security
of such series, calculated at the time of issuance of such series in
the case of clause (i), or at the time of issuance of such Security
of such series in the case of clause (ii), or, if applicable, at the
most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest
method or such other accepted financial practice as is specified in
the terms of such Security.
Section 1.2 Other Definitions. Each of the following
terms is defined in the section set forth opposite such term:
Term Section
Authenticating Agent 2.2
Cash Transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Record Date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
Self-Liquidating Paper 7.3
sinking fund payment date 3.5
tranche 2.14
Section 1.3 Incorporation By Reference Of Trust Indenture
Act. Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. The following terms used in this
Indenture that are defined by the Trust Indenture Act have the
following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other terms used in this Indenture that are defined by
the Trust Indenture Act, defined by reference in the Trust Indenture
Act to another statute or defined by a rule of the Commission and
not otherwise defined herein have the meanings assigned to them
therein.
Section 1.4 Rules Of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words
in the plural include the singular;
(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(iv) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise
indicated; and
(v) use of masculine, feminine or neuter pronouns should
not be deemed a limitation, and the use of any such pronouns
should be construed to include, where appropriate, the other
pronouns.
ARTICLE 2
THE SECURITIES
Section 2.1 Form. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions or in one or more indentures supplemental hereto,
or in one or more Officer's Certificates pursuant to such Board
Resolutions or supplemental indentures, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be
determined by the officers executing such Securities as evidenced by
their execution of the Securities. Unless otherwise so established,
Unregistered Securities shall have coupons attached.
Section 2.2 Execution And Authentication. Two officers
shall execute the Securities (other than coupons) for the Company by
facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on
the Securities. If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated,
the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate
Securities other than coupons. The Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until
the Trustee or Authenticating Agent manually signs the certificate
of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under
this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series having attached thereto appropriate coupons, if any,
executed by the Company to the Trustee for authentication together
with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities
to or upon the written order of the Company. In authenticating any
Securities of a series, the Trustee shall be entitled to receive
prior to the first authentication of any Securities of such series,
and (subject to Article 7) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities of that series were
established;
(2) any Officers' Certificate referred to in Sections 2.1
and 2.3 setting forth the form or forms and terms of the
Securities, stating that the form or forms and terms of the
Securities of such series have been, or will be when
established in accordance with such procedures as shall be
referred to therein, established in compliance with this
Indenture; and
(3) at the option of the Company, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it to
rely on an Opinion of Counsel, substantially to the effect that
the Securities have been duly authorized and, if executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the purchasers
thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other
similar laws affecting creditors' rights generally, general
principles of equity, and such other matters as shall be
specified therein.
If the Company shall establish pursuant to Section 2.3
that the Securities of a series or a portion thereof are to be
issued in the form of one or more Registered Global Securities, then
the Company shall execute and the Trustee shall authenticate and
deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series
issued in such form and not yet canceled, (ii) shall be registered
in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or its custodian or
pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Section 2.3 Amount Unlimited; Issuable In Series. The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and
each such series shall rank equally and pari passu with all other
unsecured and unsubordinated debt of the Company. There shall be
established in or pursuant to Board Resolution or one or more
indentures supplemental hereto, or in an Officer's Certificate
pursuant to such Board Resolution or such supplemental indenture,
prior to the initial issuance of Securities of any series, subject
to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture and any limitation on the
ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that
series (except for securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu
of, or upon redemption of, other Securities of the series
pursuant hereto);
(3) the date or dates on which the principal of the
Securities of the series is payable (which date or dates may be
fixed or extendible);
(4) the rate or rates (which may be fixed or variable)
per annum at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in
the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is paya
ble and/or the method by which such rate or rates or date or
dates shall be determined;
(5) if other than as provided in Section 4.2, the place
or places where the principal of and any interest on Securities
of the series shall be payable, any Registered Securities of
the series may be surrendered for exchange, notices, demands to
or upon the Company in respect of the Securities of the series
and this Indenture may be served and notice to Holders may be
published;
(6) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option
and the period or periods within which, the price or prices at
which and any terms and conditions upon which Securities of the
series may be so redeemed, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or
at the option of a Holder thereof and the price or prices at
which and the period or periods within which and any of the
terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon acceleration of the maturity
thereof;
(10) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency
in which payment of the Principal of or interest on the
Securities of the series shall be payable or if the amount of
payments of principal of and/or interest on the Securities of
the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities
of the series are denominated, the manner in which such amounts
shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite
currencies, in which payment of the Principal of and interest
on the Securities of the series shall be payable, and the
manner in which any such currencies shall be valued against
other currencies in which any other Securities shall be
payable;
(12) whether the Securities of the series or any portion
thereof will be issuable as Registered Securities (and if so,
whether such Securities will be issuable as Registered Global
Securities) or Unregistered Securities (with or without
coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other
than as provided herein, the terms upon which Unregistered
Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by
a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if
so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange
of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, the form and terms of such certificates,
documents or conditions;
(15) unless otherwise provided herein, any trustees,
depositaries, authenticating or paying agents, transfer agents
or the registrar or any other agents with respect to the
Securities of the series;
(16) provisions, if any, for the defeasance of the
Securities of the series (including provisions permitting
defeasance of less than all Securities of the series), which
provisions may be in addition to, in substitution for, or in
modification of (or any combination of the foregoing) the
provisions of Article 8;
(17) if the Securities of the series are issuable in whole
or in part as one or more Registered Global Securities, the
identity of the Depositary for such Registered Global Security
or Securities (which Depositary shall, at the time of its
designation as Depositary and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation) if other
than The Depository Trust Company, New York, New York;
(18) any other events of default or covenants with respect
to the Securities of the series in addition to the Events of
Default or covenants set forth herein; and
(19) any other terms of the Securities of the series
(which terms shall not be inconsistent with the provisions of
this Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the
case of Registered Securities as to date and denomination, except in
the case of any Periodic Offering and except as may otherwise be
provided by or pursuant to the Board Resolution referred to above or
as set forth in any such indenture supplemental hereto, or Officer's
Certificate pursuant to such Board Resolution or such supplemental
indenture. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to such
Board Resolution or in any such indenture supplemental hereto, or
Officer's Certificate pursuant to such Board Resolution or such
supplemental indenture, and any forms and terms of Securities to be
issued from time to time may be completed and established from time
to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture, or Officer's
Certificate pursuant to such Board Resolution or such supplemental
indenture.
Section 2.4 Denomination And Date Of Securities; Payments
Of Interest. The Securities of each series shall be issuable as
Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, if not so established
with respect to Securities of any series, in denominations of $1,000
and any integral multiple thereof. The Securities of each series
shall be numbered, lettered or otherwise distinguished in such
manner or in accordance with such plan as the Officers of the
Company executing the same may determine, as evidenced by their
execution thereof.
Each Security shall be dated the date of its
authentication. The Securities of each series shall bear interest,
if any, from the date, and such interest and shall be payable on the
dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date
applicable to a particular series with respect to any interest
payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security
subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the
payment of the interest due on such interest payment date for such
series, in which case the provisions of Section 2.13 shall apply.
The term "Record Date" as used with respect to an interest payment
date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in
the terms of the Registered Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established,
the fifteenth day next preceding such interest payment date, whether
or not such record date is a Business Day.
Section 2.5 Registrar And Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may
be presented for registration, registration of transfer or for
exchange (the "Registrar") and an office or agency where Securities
may be presented for payment (the "Paying Agent"), which shall be in
the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Registered Securities
and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying
Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture and the
Trust Indenture Act that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of
any Agent and any change in the name or address of an Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a
successor Agent to such Agent as evidenced by an appropriate agency
agreement entered into by the Company and such successor Agent and
delivered to the Trustee or (ii) notification to the Trustee that
the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The
Company or any affiliate of the Company may act as Paying Agent or
Registrar; provided that neither the Company nor an affiliate of the
Company shall act as Paying Agent in connection with the defeasance
of the Securities or the discharge of this Indenture under Article
8.
The Company initially appoints the Trustee as Registrar
and Paying Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten
days prior to each interest payment date and at such other times as
the Trustee may reasonably request the names and addresses of the
Holders as they appear in the Security Register.
Section 2.6 Paying Agent To Hold Money In Trust. Not
later than 10:00 a.m. New York City time on each due date of any
Principal or interest on any Securities, the Company shall deposit
with the Paying Agent money in immediately available funds
sufficient to pay such Principal or interest. The Company shall
require each Paying Agent other than the Trustee to agree in writing
that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the
Paying Agent for the payment of Principal of and interest on such
Securities and shall promptly notify the Trustee of any default by
the Company in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request
to a Paying Agent, require such Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee. If the Company or any affiliate
of the Company acts as Paying Agent, it will, on or before each due
date of any Principal of or interest on any Securities, segregate
and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest
so becoming due until such sum of money shall be paid to such
Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee in writing of its action or failure
to act as required by this Section.
Section 2.7 Transfer And Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities)
and coupons (except for coupons attached to an temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities
of any series (other than a Registered Global Security, except as
set forth below) may be exchanged for a Registered Security or
Registered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall
so require, of the charges hereinafter provided. If the Securities
of any series are issued in both registered and unregistered form,
except as otherwise established pursuant to Section 2.3, at the
option of the Holder thereof, Unregistered Securities of any series
may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for
such purpose in accordance with Section 4.2, with, in the case of
Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and
upon payment, if the Company shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate
and original issue date are issued in more than one authorized
denomination, except as otherwise established pursuant to Section
2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations
and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section
4.2, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default
thereto appertaining, and upon payment, if the Company shall so
require, of the charges hereinafter provided. Registered Securities
of any series may not be exchanged for Unregistered Securities of
such series. Whenever any securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by,
or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the Holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
Notwithstanding any other provision of this Section 2.7,
unless and until it is exchanged in whole or in part for Securities
in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not
be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling
or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered
Global Securities shall no longer be eligible under applicable law,
the Company shall appoint a successor Depositary eligible under
applicable law with respect to such Registered Global Securities.
If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery
of definitive Registered Securities of such series and tenor, will
authenticate and deliver Registered Securities of such series and
tenor, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global
Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall
no longer be maintained in global form. In such event the Company
will execute, and the Trustee, upon receipt of the Company's order
for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver,
Registered Securities of such series and tenor in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
Any time the Registered Securities of any series are not
in the form of Registered Global Securities pursuant to the
preceding two paragraphs, the Company agrees to supply the Trustee
with a reasonable supply of certificated Registered Securities
without the legend required by Section 2.2 and the Trustee agrees to
hold such Registered Securities in safekeeping until authenticated
and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Registered Securities
of the same series and tenor in definitive registered form on such
terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new
Registered Securities of the same series and tenor, of any
authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Registered Global Security;
and
(ii) to such Depositary a new Registered Global
Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Registered
Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in
such names and in such authorized denominations as the Depositary
for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Company or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms
of any Securities to the contrary, none of the Company, the Trustee
or any agent of the Company or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such
exchange would result in adverse Federal income tax consequences to
the Company (such as, for example, the inability of the Company to
deduct from its income, as computed for Federal income tax purposes,
the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officers' Certificate
or an Opinion of Counsel in determining such result.
Neither the Registrar nor the Company shall be required
(i) to issue, authenticate, register the transfer of or exchange
Securities of any series for a period of 15 days before a selection
of such Securities to be redeemed or (ii) to register the transfer
of or exchange any Security selected for redemption in whole or in
part.
Section 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if
a Holder claims that its Security of any series has been lost,
destroyed or wrongfully taken, the Company shall, subject to the
further provisions of this Section 2.8, issue and the Trustee shall
authenticate a replacement Security of such series and tenor and
principal amount bearing a number not contemporaneously outstanding.
The Company may charge such Holder for any tax or other governmental
charge that may be imposed as a result of or in connection with
replacing a Security and for its expenses and the expenses of the
Trustee (including without limitation attorneys' fees and expenses)
in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to
become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
If required by the Trustee or the Company, (i) an indemnity bond
must be furnished that is sufficient in the judgment of both the
Trustee and the Company to protect the Company, the Trustee and any
Agent from any loss that any of them may suffer if a Security is
replaced or paid as provided in this Section 2.8 and (ii) in the
case of a lost, destroyed or wrongfully taken Security, evidence
must be furnished to the satisfaction of both the Trustee and the
Company of the loss, destruction or wrongful taking of such
Security. Notwithstanding the foregoing, the Company and the
Trustee shall have no obligation to replace or pay a Security
pursuant to this Section 2.8 if either the Company or the Trustee
has notice that such Security has been acquired by a bona fide
purchaser.
Every replacement Security is an additional obligation of
the Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions
of this Section are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or wrongfully taken
Securities.
Section 2.9 Outstanding Securities. Securities
outstanding at any time are all Securities that have been
authenticated and delivered by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it
ceases to be outstanding unless and until the Trustee and the
Company receive proof satisfactory to them that the replaced
Security is held by a holder in due course.
If the Paying Agent (other than the Company or an
affiliate of the Company) holds on the maturity date or any
redemption date or date for repurchase of the Securities money
sufficient to pay Securities payable or to be redeemed or
repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease
to accrue.
A Security does not cease to be outstanding because the
Company or one of its affiliates holds such Security, provided,
however, that, in determining whether the Holders of the requisite
principal amount of the outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any affiliate of the
Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible
Officer of the Trustee has received written notice to be so owned
shall be so disregarded. Any Securities so owned that are pledged
by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate
of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free
to exercise in its or his discretion the right to vote such
securities, uncontrolled by the Company or by any such affiliate.
Section 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities of
such series. Temporary Securities of any series shall be
substantially in the form of definitive Securities of such series
but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such
temporary Securities. If temporary Securities of any series are
issued, the Company will cause definitive Securities of such series
to be prepared without unreasonable delay. After the preparation of
definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such
series and tenor upon surrender of such temporary Securities at the
office or agency of the Company designated for such purpose pursuant
to Section 4.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold. The Registrar, any
transfer agent and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel and destroy all Securities surrendered for
transfer, exchange, payment or cancellation and shall deliver a
certificate of destruction to the Company. The Company may not
issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.
Section 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in
use), and the Trustee shall use CUSIP numbers or CINS numbers, as
the case may be, in notices of redemption or exchange as a
convenience to Holders and no representation shall be made as to the
correctness of such numbers either as printed on the Securities or
as contained in any notice of redemption or exchange.
Section 2.13 Defaulted Interest. If the Company defaults
in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds
sufficient to pay, the defaulted interest plus (to the extent
lawful) any interest payable on the defaulted interest (as may be
specified in the terms thereof, established pursuant to Section 2.3)
to the Persons who are Holders on a subsequent special record date,
which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such
day is a Business Day. At least 15 days before such special record
date, the Company shall mail to each Holder and to the Trustee a
notice that states the special record date, the payment date and the
amount of defaulted interest to be paid.
Section 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each, a "tranche") of
Securities, including Securities issued in a Periodic Offering. The
Securities of different tranches may have one or more different
terms, including authentication dates and public offering prices,
but all the Securities within each such tranche shall have identical
terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect
to Sections 2.2 (other than the fourth paragraph thereof) through
2.4, 2.7, 2.8, 2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14, 8.1
through 8.5 and 9.2, if any series of Securities includes more than
one tranche, all provisions of such sections applicable to any
series of Securities shall be deemed equally applicable to each
tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with
respect to such series or tranche pursuant to Section 2.3. In
particular, and without limiting the scope of the next preceding
sentence, any of the provisions of such sections which provide for
or permit action to be taken with respect to a series of Securities
shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed
satisfied thereby), even if no comparable action is taken with
respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
Section 3.1 Applicability Of Article. The provisions of
this Article shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of such
series.
Section 3.2 Notice Of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part at the option of the
Company shall be given by mailing notice of such redemption by first
class mail postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of
Registered Securities of such series at their last addresses as they
shall appear upon the Securities Register. Notice of redemption to
the Holders of Unregistered Securities of any series to be redeemed
as a whole or in part who have filed their names and addresses with
the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act, shall be given by mailing notice of such redemption, by first
class mail, postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of
any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of
redemption to all other Holders of Unregistered Securities of any
series to be redeemed as a whole or in part shall be published in an
Authorized Newspaper in The City of New York or with respect to any
Security the interest on which is based on the offered quotations in
the interbank Eurodollar market for dollar deposits in an Authorized
Newspaper in London, in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 days
nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided
shall be conclusively presumed to have been duly given, whether or
not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Security of such series.
The notice of redemption to each such Holder shall specify
(i) the principal amount of each Security of such series held by
such Holder to be redeemed, (ii) the CUSIP numbers of the Securities
to be redeemed, (iii) the date fixed for redemption, (iv) the
redemption price, (v) the place or places of payment, (vi) that
payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached
thereto, of all coupons appertaining thereto maturing after the date
fixed for redemption, (vii) that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case,
(viii) that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed
in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series and tenor in
principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Not later than 10:00 a.m. New York City time on the
redemption date specified in the notice of redemption given as
provided in this Section, the Company will deposit with the Trustee
or with one or more Paying Agents (or, if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 2.6) an amount of money in immediately available
funds sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed
for redemption. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee
at least 15 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph
of this Section 3.2 (or such shorter period as shall be acceptable
to the Trustee) an Officers' Certificate (which need not contain the
statements required by Section 10.4) stating the aggregate principal
amount of such Securities to be redeemed. In case of a redemption
at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the
Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, pro rata, by lot or in such
manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case
of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been
or is to be redeemed.
Section 3.3 Payment Of Securities Called For Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after such date
(unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities so called
for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in
Sections 7.11 and 8.4, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the
redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all
coupons, if any, appertaining thereto maturing after the date fixed
for redemption, said Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that payment of interest becoming due
on or prior to the date fixed for redemption shall be payable in the
case of Securities with coupons attached thereto, to the Holders of
the coupons for such interest upon surrender thereof, and in the
case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to
the terms and provisions of Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest or Yield to Maturity (in the case
of an Original Issue Discount Security) borne by such Security.
If any Security with coupons attached thereto is
surrendered for redemption and is not accompanied by all appurtenant
coupons maturing after the date fixed for redemption, the surrender
of such missing coupon or coupons may be waived by the Company and
the Trustee, if there be furnished to each of them such security or
indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed
in part only, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of such
series and tenor (with any unmatured coupons attached), of
authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
Section 3.4 Exclusion Of Certain Securities From
Eligibility For Selection For Redemption. Securities shall be
excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written
statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on
which notice of redemption may be given as being owned of record and
beneficially by, not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.
Section 3.5 Mandatory And Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is
herein referred to as an "optional sinking fund payment." The date
on which a sinking fund payment is to be made is herein referred to
as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the
Company may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except
through a mandatory sinking fund payment) by the Company or receive
credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section,
or (c) receive credit for Securities of such series (not previously
so credited) redeemed by the Company through any optional sinking
fund payment. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each sinking
fund payment date for any series, or such shorter period as shall be
acceptable to the Trustee, the Company will deliver to the Trustee
an Officers' Certificate (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of specified Securities of such
series and the basis for such credit, (b) stating that none of the
specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which
have not been waived or cured) and are continuing and (d) stating
whether or not the Company intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if
so, specifying the amount of such optional sinking fund payment that
the Company intends to pay on or before the next succeeding sinking
fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to
be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or
delivery of securities therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Company,
on or before any such sixtieth day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any,
shall not constitute a Default but shall constitute, on and as of
such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking
fund payment date plus any unused balance of any preceding sinking
fund payments made in cash shall exceed $50,000 (or a lesser sum if
the Company shall so request with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at
the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount
shall be $50,000 (or such lesser sum) or less and the Company makes
no such request then it shall be carried over until a sum in excess
of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.2, for redemption on
such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be,
and shall inform the Company of the serial numbers of the Securities
of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if
they are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 60 days
prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company. The
Trustee, in the name and at the expense of the Company (or the
Company, if it shall so request the Trustee in writing) shall cause
notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.2 (and with the
effect provided in Section 3.3) for the redemption of Securities of
such series in part at the option of the Company. The amount of any
sinking fund payments not so applied or allocated to the redemption
of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall
be applied in accordance with the provisions of this Section. Any
and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with
other moneys, if necessary, sufficient for the purpose, to the
payment of the Principal of, and interest on, the Securities of such
series at maturity.
Not later than 10:00 a.m. New York City time on each
sinking fund payment date, the Company shall pay to the Trustee in
cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of
interest on such Securities or of any Event of Default except that,
where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be
redeemed such Securities, provided that it shall have received from
the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the
time when any such Default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the
continuance of such Default or Event of Default, be deemed to have
been collected under Article 6 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 6.4 or the Default cured on or before the
sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE 4
COVENANTS
Section 4.1 Payment Of Securities. The Company shall pay
the Principal of and interest on the Securities on the dates and in
the manner provided in the Securities and this Indenture. The
interest on Securities with coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities)
shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as
they severally mature. The interest on any temporary Unregistered
Securities (together with any additional amounts payable pursuant to
the terms of such Securities) shall be paid, as to the installments
of interest evidenced by coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any
additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of
the Company may be paid by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses
as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a
Holder of any Registered Security so agree, payments of interest on,
and any portion of the Principal of, such ▇▇▇▇▇▇'s Registered
Security (other than interest payable at maturity or on any
redemption or repayment date or the final payment of Principal on
such Security) shall be made by the Paying Agent, upon receipt from
the Company of immediately available funds by 11:00 A.M., New York
City time (or such other time as may be agreed to between the
Company and the Paying Agent), directly to the Holder of such
Security (by Federal funds wire transfer or otherwise) if the Holder
has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made
and in the case of payments of Principal surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the
same principal amount as the unredeemed principal amount of the
Securities surrendered. The Trustee shall be entitled to rely on
the last instruction delivered by the Holder pursuant to this
Section 4.1 unless a new instruction is delivered 15 days prior to a
payment date. The Company will indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or
expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in
connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful,
at the rate per annum specified in the Securities.
Section 4.2 Maintenance Of Office Or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment
and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company hereby
initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such
office or agency of the Company. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served
at the address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city
or cities located outside the United States (including any city in
which such an agency is required to be maintained under the rules of
any stock exchange on which the Securities of any series are listed)
where the Unregistered Securities, if any, of each series and
coupons, if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of
the Company within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United
States unless, pursuant to applicable United States laws and
regulations then in effect, such payment can be made without adverse
tax consequences to the Company. Notwithstanding the foregoing, if
full payment in United States Dollars ("Dollars") at each agency
maintained by the Company outside the United States for payment on
such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other
similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in
Dollars may be made at an agency of the Company maintained in the
Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of any series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided that no such
designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 4.3 Negative Pledge. (a) The Company will not,
and will not permit any Restricted Subsidiary to, create or incur
any Lien on any shares of stock, indebtedness or other obligations
of a Restricted Subsidiary or any Principal Property of the Company
or a Restricted Subsidiary, whether such shares of stock,
indebtedness or other obligations of a Restricted Subsidiary or
Principal Property are owned at the date of this Indenture or
hereafter acquired, unless the Company secures or causes such
Restricted Subsidiary to secure the outstanding Securities equally
and ratably with (or, at the Company's option, prior to) all
indebtedness secured by such Lien, so long as such indebtedness
shall be so secured; provided, however, that this covenant shall not
apply in the case of: (i) the creation of any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property hereafter acquired (including acquisitions by way
of merger or consolidation) by the Company or a Restricted
Subsidiary contemporaneously with such acquisition, or within 180
days thereafter, to secure or provide for the payment or financing
of any part of the purchase price thereof, or the assumption of any
Lien upon any shares of stock, indebtedness or other obligations of
a Subsidiary or any Principal Property hereafter acquired existing
at the time of such acquisition, or the acquisition of any shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property subject to any Lien without the assumption
thereof, provided that every such Lien referred to in this clause
(i) shall attach only to the shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property so acquired
and fixed improvements thereon; (ii) any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property existing at the date of this Indenture; (iii) any
Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property in favor of the Company or any
Restricted Subsidiary; (iv) any Lien on any Principal Property being
constructed or improved securing loans to finance such construction
or improvements; (v) any Lien on shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property incurred
in connection with the issuance of tax-exempt governmental
obligations (including, without limitation, industrial revenue bonds
and similar financings); (vi) any mechanics', materialmen's,
carriers' or other similar Liens arising in the ordinary course of
business with respect to obligations that are not yet due or that
are being contested in good faith, (vii) any Lien on any shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property for taxes, assessments or governmental charges or
levies not yet delinquent, or already delinquent but the validity of
which is being contested in good faith, (viii) any Lien on any
shares of stock, indebtedness or other obligations of a Subsidiary
or any Principal Property arising in connection with legal
proceedings being contested in good faith, including any judgment
Lien so long as execution thereon is stayed, (ix) any landlord's
Lien on fixtures located on premises leased by the Company or a
Restricted Subsidiary in the ordinary course of business, and
tenants' rights under leases, easements and similar Liens not
materially impairing the use or value of the property involved, (x)
any Lien arising by reason of deposits necessary to qualify the
Company or any Restricted Subsidiary to conduct business, maintain
self insurance, or obtain the benefit of, or comply with, any law,
(xi) Liens on current assets of the Company to secure loans to the
Company that mature within twelve months from the creation thereof
and that are made in the ordinary course of business, and (xii) any
renewal of or substitution for any Lien permitted by any of the
preceding clauses (i) through (xi), provided, in the case of a Lien
permitted under clause (i), (ii) or (iv), the indebtedness secured
is not increased nor the Lien extended to any additional assets.
(b) Notwithstanding the provisions of paragraph (a) of
this Section, the Company or any Restricted Subsidiary may create or
assume Liens in addition to those permitted by paragraph (a) of this
Section, and renew, extend or replace such liens, provided that at
the time of such creation, assumption, renewal, extension or
replacement, and after giving effect thereto, Exempted Debt does not
exceed 15% of Consolidated Net Tangible Assets.
Section 4.4 Certain Sale And Lease-Back Transactions.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, sell or transfer, directly or indirectly, except to
the Company or a Restricted Subsidiary, any Principal Property as an
entirety, or any substantial portion thereof, with the intention of
taking back a lease of such property, except a lease for a period of
three years or less at the end of which it is intended that the use
of such property by the lessee will be discontinued; provided that,
notwithstanding the foregoing, the Company or any Restricted
Subsidiary may sell any such Principal Property and lease it back
for a longer period (i) if the Company or such Restricted Subsidiary
would be entitled, pursuant to the provisions of Section 4.3(a), to
create a Lien on the property to be leased securing Funded Debt in
an amount equal to the Attributable Debt with respect to such sale
and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the Company promptly informs
the Trustee of such transaction and (B) the Company causes an amount
equal to the fair value (as determined by Board Resolution of the
Company) of such property to be applied (1) to the purchase of other
property that will constitute Principal Property having a fair value
at least equal to the fair value of the property sold, or (2) to the
retirement, within 120 days after receipt of such proceeds, of
Funded Debt incurred or assumed by the Company or a Restricted
Subsidiary (including the Securities); provided further that, in
lieu of applying all of or any part of such net proceeds to such
retirement, the Company may, within 75 days after such sale, deliver
or cause to be delivered to the applicable trustee for cancellation
either debentures or notes evidencing Funded Debt of the Company
(which may include the Securities) or of a Restricted Subsidiary
previously authenticated and delivered by the applicable trustee,
and not theretofore tendered for sinking fund purposes or called for
a sinking fund or otherwise applied as a credit against an
obligation to redeem or retire such notes or debentures, and an
Officers' Certificate (which shall be delivered to the Trustee and
which need not contain the statements prescribed by Section 10.4)
stating that the Company elects to deliver or cause to be delivered
such debentures or notes in lieu of retiring Funded Debt as
hereinabove provided. If the Company shall so deliver debentures or
notes to the applicable trustee and the Company shall duly deliver
such Officers' Certificate, the amount of cash that the Company
shall be required to apply to the retirement of Funded Debt under
this Section 4.4(a) shall be reduced by an amount equal to the
aggregate of the then applicable optional redemption prices (not
including any optional sinking fund redemption prices) of such
debentures or notes, or, if there are no such redemption prices, the
principal amount of such debentures or notes; provided, that in the
case of debentures or notes that provide for an amount less than the
principal amount thereof to be due and payable upon a declaration of
the maturity thereof, such amount of cash shall be reduced by the
amount of principal of such debentures or notes that would be due
and payable as of the date of such application upon a declaration of
acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of
this Section 4.4, the Company or any Restricted Subsidiary may enter
into sale and lease-back transactions in addition to those permitted
by paragraph (a) of this Section 4.4 without any obligation to
retire any outstanding Securities or other Funded Debt, provided
that at the time of entering into such sale and lease-back
transactions and after giving effect thereto, Exempted Debt does not
exceed 15% of Consolidated Net Tangible Assets.
Section 4.5 Certificate To Trustee. The Company will
furnish to the Trustee annually, on or before a date not more than
four months after the end of its fiscal year (which, on the date
hereof, is a calendar year), a brief certificate (which need not
contain the statements required by Section 10.4) from its principal
executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and
covenants under this Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice
provided under this Indenture) which certificate shall comply with
the requirements of the Trust Indenture Act.
Section 4.6 Reports By The Company. The Company
covenants to file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents, and other reports
which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge, Etc. The Company
shall not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of
its property and assets (in one transaction or a series of related
transactions) to, any Person (other than a consolidation with or
merger with or into a Subsidiary or a sale, conveyance, transfer,
lease or other disposition to a Subsidiary) or permit any Person to
merge with or into the Company unless:
(a) either (i) the Company shall be the continuing Person
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that
acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under the
laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Securities and under
this Indenture and the Company shall have delivered to the
Trustee an Opinion of Counsel stating that such consolidation,
merger or transfer and such supplemental indenture complies
with this provision and that all conditions precedent provided
for herein relating to such transaction have been complied with
and that such supplemental indenture constitutes the legal,
valid and binding obligation of the Company or such successor
enforceable against such entity in accordance with its terms,
subject to customary exceptions; and
(b) an Officers' Certificate to the effect that
immediately after giving effect to such transaction, no Default
shall have occurred and be continuing and an Opinion of Counsel
as to the matters set forth in Section 5.1(a) shall have been
delivered to the Trustee.
Section 5.2 Successor Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease or
other disposition of all or substantially all of the property and
assets of the Company in accordance with Section 5.1, the successor
Person formed by such consolidation or into which the Company is
merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been
named as the Company herein. In the event of any such sale,
conveyance, transfer or other disposition (other than by way of
lease) the Company or any successor Person that shall heretofore
have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may be liquidated and dissolved.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1 Events Of Default. An "Event of Default"
shall occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal
of any Security of such series when the same becomes due and
payable at maturity, upon acceleration, redemption or mandatory
repurchase, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of interest on
any Security of such series when the same becomes due and
payable, and such default continues for a period of 30 days;
(c) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in this
Indenture with respect to any Security of such series or in the
Securities of such series and such default or breach continues
for a period of 30 consecutive days after written notice to the
Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the
Securities of all series affected thereby;
(d) an involuntary case or other proceeding shall be
commenced against the Company or any Restricted Subsidiary with
respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an
order for relief shall be entered against the Company or any
Restricted Subsidiary under the federal bankruptcy laws as now
or hereafter in effect;
(e) the Company or any Restricted Subsidiary (A)
commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary
case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or
any Restricted Subsidiary or (C) effects any general assignment
for the benefit of creditors; or
(f) any other Event of Default established pursuant to
Section 2.3 with respect to the Securities of such series
occurs.
Section 6.2 Acceleration. (a) If an Event of Default
described in clauses (a) or (b) of Section 6.1 with respect to the
Securities of any series then outstanding occurs and is continuing,
then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a
separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series established pursuant to
Section 2.3) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due
and payable.
(b) If an Event of Default described in clauses (c) or
(f) of Section 6.1 with respect to the Securities of one or more but
not all series then outstanding, or with respect to the Securities
of all series then outstanding, occurs and is continuing, then, and
in each and every such case, except for any series of Securities the
principal of which shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable
under this Section) of the Securities of all such affected series
then outstanding hereunder (treated as a single class) by notice in
writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the
Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified
in the terms of such series established pursuant to Section 2.3) of
all Securities of all such affected series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable.
(c) If an Event of Default described in clause (d) or (e)
of Section 6.1 occurs and is continuing, then the principal amount
(or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof
established pursuant to Section 2.3) of all the Securities then
outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by
applicable law.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof established
pursuant to Section 2.3) of the Securities of any series (or of all
the Securities, as the case may be) shall have been so declared due
and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all
the Securities of each such series (or of all the Securities, as the
case may be) and the principal of any and all Securities of each
such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest
upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of each such series to the date of such
payment or deposit) and such amount as shall be sufficient to cover
all amounts owing the Trustee under Section 7.7, and if any and all
Events of Default under the Indenture, other than the non-payment of
the principal of Securities that shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then, and in each and every such case, the Holders
of a majority in aggregate principal amount of all the then
outstanding Securities of all such series that have been accelerated
(voting as a single class), by written notice to the Company and to
the Trustee, may waive all defaults with respect to all such series
(or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of
such Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount
Securities.
Section 6.3 Other Remedies. If a payment default or an
Event of Default with respect to the Securities of any series occurs
and is continuing, the Trustee may pursue, in its own name or as
trustee of an express trust, any available remedy by proceeding at
law or in equity to collect the payment of principal of and interest
on the Securities of such series or to enforce the performance of
any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
Section 6.4 Waiver Of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal
amount (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as is then accelerable
under Section 6.2) of the outstanding Securities of all series
affected (voting as a single class), by notice to the Trustee, may
waive, on behalf of the Holders of all the Securities of such
series, an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in
the payment of Principal of or interest on any Security as specified
in clause (a) or (b) of Section 6.1 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such
series arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Section 6.5 Control By Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate
principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as is then accelerable
under Section 6.2) of the outstanding Securities of all series
affected (voting as a single class) may direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee
with respect to the Securities of such series by this Indenture;
provided that the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may involve the Trustee
in personal liability or that the Trustee determines in good faith
may be unduly prejudicial to the rights of Holders not joining in
the giving of such direction; and provided further that the Trustee
may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to
this Section 6.5.
Section 6.6 Limitation On Suits. No Holder of any
Security of any series may institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Securities of such
series, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to
the Securities of such series;
(b) the Holders of at least 25% in aggregate principal
amount of outstanding Securities of all such series affected
shall have made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any
costs, liabilities or expenses to be incurred in compliance
with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(e) during such 60 day period, the Holders of a majority
in aggregate principal amount of the outstanding Securities of
all such affected series have not given the Trustee a direction
that is inconsistent with such written request.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over
such other Holder.
Section 6.7 Rights Of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of Principal of or
interest, if any, on such Holder's Security on or after the
respective due dates expressed on such Security, or to bring suit
for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.8 Collection Suit By Trustee. If an Event of
Default with respect to the Securities of any series in payment of
Principal or interest specified in clause (a) or (b) of Section 6.1
occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company for
the whole amount (or such portion thereof as specified in the terms
established pursuant to Section 2.3 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid
on, together with interest on overdue Principal of, and, to the
extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each
case at the rate or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, and such further
amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.7.
Section 6.9 Trustee May File Proofs Of Claim. In the
case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee may file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for amounts due the Trustee under Section 7.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any moneys,
securities or other property payable or deliverable upon conversion
or exchange of the Securities or upon any such claims and to
distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it under Section 7.7. Nothing
herein contained shall be deemed to empower the Trustee to authorize
or consent to, or accept or adopt on behalf of any Holder, any plan
of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10 Application Of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of the
Securities of any series shall be applied in the following order at
the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of Principal or interest,
upon presentation of the several Securities and coupons appertaining
to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series
and tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.7 applicable to the Securities of such series
in respect of which moneys have been collected;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the
order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably
to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the payment
of the whole amount then owing and unpaid upon all the
Securities of such series for Principal and interest, with
interest upon the overdue Principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such Principal and interest
or Yield to Maturity, without preference or priority of
Principal over interest or Yield to Maturity, or of interest or
Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any
Security of such series over any other Security of such series,
ratably to the aggregate of such Principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
Section 6.11 Restoration Of Rights And Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then, and in each and
every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their
former positions hereunder and thereafter all rights and remedies of
the Company, Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section 6.12 Undertaking For Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, in either case in respect to the Securities of any series,
a court may require any party litigant in such suit (other than the
Trustee) to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant (other than the Trustee)
in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12
does not apply to a suit by a Holder pursuant to Section 6.7 or a
suit by Holders of more than 10% in aggregate principal amount of
the outstanding Securities of such series.
Section 6.13 Rights And Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities in Section
2.8, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.14 Delay Or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or
remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this
Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
Section 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as
set forth herein. Notwithstanding the foregoing, no provision of
this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein
expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Article 7.
Section 7.2 Certain Rights Of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
Officers' Certificate, Opinion of Counsel (or both), statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper
person or persons. The Trustee need not investigate any fact
or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of
Counsel, which shall conform to Section 10.4. The Trustee
shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion. Subject
to Sections 7.1 and 7.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence
of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the
faith thereof;
(c) the Trustee may act through its attorneys and agents
not regularly in its employ and shall not be responsible for
the misconduct or negligence of any agent or attorney appointed
with due care by it hereunder;
(d) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof
be herein specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request, order or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within its rights or powers or for any action it
takes or omits to take in accordance with the direction of the
Holders in accordance with Section 6.5 relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture;
(g) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon; and
(h) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, Officers' Certificate, Opinion of
Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal,
bond, debenture, note, coupon, security, or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine, during normal business hours and upon prior written
notice, books, records and premises of the Company, personally
or by agent or attorney.
Section 7.3 Individual Rights Of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
affiliates with the same rights it would have if it were not the
Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Trust Indenture Act Sections 310(b) and 311.
For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall mean:
(a) "Cash Transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
and
(b) "Self-Liquidating Paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and that is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not
of the Trustee and the Trustee assumes no responsibility for the
correctness of the same. Neither the Trustee nor any of its agents
(i) makes any representation as to the validity or adequacy of this
Indenture or the Securities and (ii) shall be accountable for the
Company's use or application of the proceeds from the Securities.
Section 7.5 Notice Of Default. If any Default with
respect to the Securities of any series occurs and is continuing and
if such Default is known to the actual knowledge of a Responsible
Officer with the Corporate Trust Department of the Trustee, the
Trustee shall give to each Holder of Securities of such series
notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (ii) to all
Holders of Securities of such series in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or
publication of such notice; provided, however, that, except in the
case of a Default in the payment of the Principal of or interest on
any Security, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
Section 7.6 Reports By Trustee To Holders. Within 60
days after each May 15, beginning with May 15, 1997, the Trustee
shall mail to each Holder as and to the extent provided in Trust
Indenture Act Section 313(c) a brief report dated as of such May 15,
if required by Trust Indenture Act Section 313(a).
Section 7.7 Compensation And Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon
in writing from time to time for its services. The compensation of
the Trustee shall not be limited by any law on compensation of a
Trustee of an express trust. The Company agrees to pay or reimburse
the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
or on behalf of it in accordance with any of the provisions of this
Indenture and the Securities or the issuance of the Securities or
any series thereof (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ) except to the extent any
such expense, disbursement or advance may arise from its negligence
or bad faith. The Company shall indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or
the issuance of the Securities or any series thereof or the trusts
hereunder and the performance of its duties hereunder, including the
costs and expenses of defending itself against or investigating any
claim of liability in the premises, except to the extent such loss,
liability or expense is due to the negligence or bad faith of the
Trustee or such predecessor Trustee. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel; provided that the Company will not be
required to pay such fees and expenses if it assumes the Trustee's
defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not
pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss
or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay
Principal of, and interest on particular Securities.
The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee
and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or the rejection or termination of this
Indenture under bankruptcy law. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in
trust for the benefit of the Holders of particular Securities or
coupons, and the Securities are hereby subordinated to such senior
claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 6.1(d) or Section
6.1(e), the parties hereto and the Holders by their acceptance of
the Securities hereby agree that such expenses are intended to
constitute expenses of administration under any bankruptcy law.
Section 7.8 Replacement Of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of
any series and appointment of a successor Trustee as Trustee with
respect to the Securities of any series shall become effective only
upon the successor Trustee's acceptance of appointment as provided
in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in
writing. The Holders of a majority in aggregate principal amount of
the outstanding Securities of any series may remove the Trustee as
Trustee with respect to the Securities of such series by so
notifying the Trustee and the Company in writing and may appoint a
successor Trustee with respect thereto with the consent of the
Company. The Company may remove the Trustee as Trustee with respect
to the Securities of any series if: (a) the Trustee is no longer
eligible under Section 7.10 of this Indenture; (b) the Trustee is
adjudged a bankrupt or insolvent; (c) a receiver or other public
officer takes charge of the Trustee or its property; or (d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with
respect to the Securities of any series, or if a vacancy exists in
the office of Trustee with respect to the Securities of any series
for any reason, the Company shall promptly appoint a successor
Trustee with respect thereto. Within one year after the successor
Trustee takes office, the Holders of a majority in aggregate
principal amount of the outstanding Securities of such series may
appoint a successor Trustee in respect of such Securities to replace
the successor Trustee appointed by the Company. If the successor
Trustee with respect to the Securities of any series does not
deliver its written acceptance required by the next succeeding
paragraph of this Section 7.8 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the
outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after the delivery
of such written acceptance, subject to the lien provided for in
Section 7.7, (a) the retiring Trustee shall transfer all property
held by it as Trustee in respect of the Securities of such series to
the successor Trustee, (b) the resignation or removal of the
retiring Trustee in respect of the Securities of such series shall
become effective and (c) the successor Trustee shall have all the
rights, powers and duties of the Trustee in respect of the
Securities of such series under this Indenture. A successor Trustee
shall mail notice of its succession to each Holder of Securities of
such series.
Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee in respect of the
Securities of such series to all Holders of Securities of such
series. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to
the Securities of any series pursuant to this Section 7.8, the
Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
Section 7.9 Successor Trustee By ▇▇▇▇▇▇, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting,
surviving or transferee corporation or national banking association
without any further act shall be the successor Trustee with the same
effect as if the successor Trustee had been named as the Trustee
herein.
Section 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and
surplus of at least $10,000,000 as set forth in its most recent
published annual report of condition, if any. The Trustee shall
comply with Trust Indenture Act Section 310(b). If at any time the
Trustee with respect to the Securities of any series shall cease to
be eligible in accordance with the provisions of this Section, it
shall resign immediately within the manner and with the effect
hereinafter specified in this Article.
Section 7.11 Money Held In Trust. The Trustee shall not
be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the
extent required by law and except for money held in trust under
Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Defeasance Within One Year Of Payment.
Except as otherwise provided in this Section 8.1, the Company may
terminate its obligations under the Securities of any series and
this Indenture with respect to Securities of such series if:
(a) all Securities of such series previously
authenticated and delivered (other than destroyed, lost or
wrongfully taken Securities of such series that have been
replaced or Securities of such series that are paid pursuant to
Section 4.1 or Securities of such series for whose payment
money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.5)
have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one
year or all of them are to be called for redemption within one
year under arrangements satisfactory to the Trustee for giving
the notice of redemption, (ii) the Company irrevocably deposits
in trust with the Trustee, as trust funds solely for the
benefit of the Holders of such Securities for that purpose,
money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any
reinvestment, to pay Principal of and interest on the
Securities of such series to maturity or redemption, as the
case may be, and to pay all other sums payable by it hereunder,
and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture with respect
to the Securities of such series have been complied with.
With respect to the foregoing clause (a), only the
Company's obligations under Sections 7.7 and 8.5 in respect of the
Securities of such series shall survive. With respect to the
foregoing clause (b), only the Company's obligations in Sections 2.2
through 2.12, 4.2, 7.7, 7.8 and 8.5 in respect of the Securities of
such series shall survive until such Securities of such series are
no longer outstanding. Thereafter, only the Company's obligations
in Sections 7.7 and 8.5 in respect of the Securities of such series
shall survive. After any such irrevocable deposit, the Trustee
shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture
with respect to the Securities of such series except for those
surviving obligations specified above.
Section 8.2 Defeasance. Except as provided below, the
Company will be deemed to have paid and will be discharged from any
and all obligations in respect of the Securities of any series and
the provisions of this Indenture will no longer be in effect with
respect to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions
shall have been satisfied:
(a) the Company has irrevocably deposited in trust with
the Trustee as trust funds solely for the benefit of the
Holders of the Securities of such series, for payment of the
Principal of and interest on the Securities of such series,
money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay and discharge the Principal of
and accrued interest on the outstanding Securities of such
series to maturity or earlier redemption (irrevocable provided
for under arrangements satisfactory to the Trustee), as the
case may be;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a
party or by which it is bound;
(c) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of
such deposit;
(d) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
United States Internal Revenue Service to the effect that the
Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this
Section 8.2 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred, (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above and based upon a change in
law, or (z) an instrument, in form reasonably satisfactory to
the Trustee, wherein the Company, notwithstanding the payment
and discharge, pursuant to this Section 8.2, of its
indebtedness in respect of Securities of any series, or any
portion of the principal amount thereof, shall assume the
obligation (which shall be absolute and unconditional) to
irrevocably deposit with the Trustee such additional sums of
money, if any, or additional U.S. Government Obligations
(meeting the requirements of this Article 8), if any, or any
combination thereof, at such time or times, as shall be
necessary, together with the money and/or U.S. Government
Obligations theretofore so deposited, to pay when due the
Principal of and premium, if any, and interest due and to
become due on such Securities or portions thereof; provided,
however, that such instrument may state that the obligation of
the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a
notice asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized
standing, selected by the Trustee, showing the calculation
thereof, and (2) an Opinion of Counsel to the effect that the
Holders of the Securities of such series have a valid security
interest in the trust funds subject to no prior liens under the
UCC; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to
the defeasance contemplated by this Section 8.2 of the
Securities of such series have been complied with.
The Company's obligations in Sections 2.2 through 2.12,
4.2, 7.7, 7.8 and 8.5 with respect to the Securities of such series
shall survive until such Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7 and 8.5
shall survive.
Section 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections
4.3 or 4.4 (or any other specific covenant relating to such series
provided for in a Board Resolution or supplemental indenture, or
Officer's Certificate pursuant to such Board Resolution or such
supplemental indenture, pursuant to Section 2.3 that may by its
terms be defeased pursuant to this Section 8.3), and such omission
shall be deemed not to be an Event of Default under clauses (c) or
(f) of Section 6.1, with respect to the outstanding Securities of a
series if:
(a) the Company has irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of
the Holders of the Securities of such series, for payment
of the Principal of and interest, if any, on the
Securities of such series, money or U.S. Government
Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state
and local taxes or other charges and assessments in
respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the
outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may
be;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of
such series shall have occurred and be continuing on the
date of such deposit;
(d) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
Securities of such series have a valid security interest
in the trust funds subject to no prior liens under the
UCC; and
(e) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent provided for
herein relating to the covenant defeasance contemplated by
this Section 8.3 of the Securities of such series have
been complied with.
Section 8.4 Application Of Trust Money. Subject to
Section 8.5, the Trustee or Paying Agent shall hold in trust money
or U.S. Government Obligations deposited with it pursuant to Section
8.1, 8.2 or 8.3, as the case may be, in respect of the Securities of
any series and shall apply the deposited money and the proceeds from
deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of
Principal of and interest on the Securities of such series; but such
money need not be segregated from other funds except to the extent
required by law. The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 8.1,
8.2 or 8.3, as the case may be, or the Principal and interest
received in respect thereof, other than any such tax, fee or other
charge that by law is for the account of the Holders.
Section 8.5 Repayment To Company. Subject to Sections
7.7, 8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall
promptly pay to the Company upon request set forth in an Officers'
Certificate any money held by them at any time and not required to
make payments hereunder and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying
Agent shall pay to the Company upon written request any money held
by them and required to make payments hereunder under this Indenture
that remains unclaimed for two years; provided that the Trustee or
such Paying Agent before being required to make any payment may
cause to be published at the expense of the Company once in an
Authorized Newspaper in The City of New York or with respect to any
Security the interest on which is based on the offered quotations in
the interbank Eurodollar market for dollar deposits in an Authorized
Newspaper in London or mail to each Holder entitled to such money at
such ▇▇▇▇▇▇'s address (as set forth in the Security Register) notice
that such money remains unclaimed and that after a date specified
therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for
payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent Of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities
of any series without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in
this Indenture; provided that such amendments or supplements
shall not materially and adversely affect the interests of the
Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the
Trust Indenture Act;
(d) to evidence and provide for the acceptance of
appointment hereunder with respect to the Securities of any or
all series by a successor Trustee;
(e) to establish the form or forms or terms of Securities
of any series or of the coupons appertaining to such Securities
as permitted by Section 2.3;
(f) to provide for uncertificated or Unregistered
Securities and to make all appropriate changes for such
purpose;
(g) to change or eliminate any provisions of this
Indenture with respect to all or any series of the Securities
not then outstanding (and, if such change is applicable to
fewer than all such series of the Securities, specifying the
series to which such change is applicable), and to specify the
rights and remedies of the Trustee and the holders of such
Securities in connection therewith; and
(h) to make any change that does not materially and
adversely affect the rights of any Holder.
Section 9.2 With Consent Of Holders. Subject to Sections
6.4 and 6.7, without prior notice to any Holders, the Company and
the Trustee may amend this Indenture and the Securities of any
series with the written consent of the Holders of a majority in
aggregate principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series
voting as one class), and the Holders of a majority in aggregate
principal amount of the outstanding Securities of all series
affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company
with any provision of this Indenture or the Securities of such
series.
Notwithstanding the provisions of this Section 9.2,
without the consent of each Holder affected thereby, an amendment or
waiver, including a waiver pursuant to Section 6.4, may not:
(a) extend the stated maturity of the Principal of, or
any sinking fund obligation or any installment of interest on,
such Holder's Security, or reduce the Principal amount thereof
or the rate of interest thereon (including any amount in
respect of original issue discount), or any premium payable
with respect thereto, or adversely affect the rights of such
Holder under any mandatory redemption or repurchase provision
or any right of redemption or repurchase at the option of such
Holder, or reduce the amount of the Principal of an Original
Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 6.2 or
the amount thereof provable in bankruptcy, or change any place
of payment where, or the currency in which, any Security or any
premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or
after the due date therefor;
(b) reduce the percentage in principal amount of
outstanding Securities of the relevant series the consent of
whose Holders is required for any such supplemental indenture,
for any waiver of compliance with certain provisions of this
Indenture or certain Defaults and their consequences provided
for in this Indenture;
(c) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or
(d) modify any of the provisions of this Section 9.2,
except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each outstanding
Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of Holders of
Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the
coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder
under this Section 9.2 to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient
if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company or, at the Company's
request, the Trustee shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The
Company or, at the Company's request, the Trustee will mail
supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
Section 9.3 Revocation And Effect Of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as
the Security of the consenting Holder, even if notation of the
consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or
portion of its Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a
record date (which may be not less than 10 nor more than 60 days
prior to the solicitation of consents) for the purpose of
determining the Holders of the Securities of any series affected
entitled to consent to any amendment, supplement or waiver. If a
record date is fixed, then, notwithstanding the immediately
preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those
Persons shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not
such Persons continue to be such Holders after such record date. No
such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective
with respect to the Securities of any series affected thereby, it
shall bind every Holder of such Securities theretofore or thereafter
authenticated and delivered hereunder unless it is of the type
described in any of clauses (a) through (d) of Section 9.2. In case
of an amendment or waiver of the type described in clauses (a)
through (d) of Section 9.2, the amendment or waiver shall bind each
such Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the
consenting Holder.
Section 9.4 Notation On Or Exchange Of Securities. If an
amendment, supplement or waiver changes the terms of any Security,
the Trustee may require the Holder thereof to deliver it to the
Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder and the
Trustee may place an appropriate notation on any Security of such
series thereafter authenticated. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the
same series and tenor that reflects the changed terms.
Section 9.5 Trustee To Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of an
amendment, supplement or waiver authorized pursuant to this Article
9 is authorized or permitted by this Indenture, stating that all
requisite consents have been obtained or that no consents are
required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the
Trustee shall sign such amendment, supplement or waiver if the same
does not adversely affect the rights of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Section 9.6 Conformity With Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall
conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Trust Indenture Act Of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust
Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act. If any
provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of Section 318(c) of the Trust Indenture
Act, the imposed duties shall control.
Section 10.2 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when
received or (b) if mailed by first class mail 5 days after mailing,
or (c) as between the Company and the Trustee if sent by facsimile
transmission, when transmission is confirmed, in each case addressed
as follows:
If to the Company:
Arrow Electronics, Inc.
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to the Trustee:
Bank of Montreal Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Company or the Trustee by written notice to the other
may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once
in an Authorized Newspaper in The City of New York, or with respect
to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits at
least once in an Authorized Newspaper in London, and by mailing to
the Holders thereof who have filed their names and addresses with
the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act
at such addresses as were so furnished to the Trustee (and in the
case of an notice given by the Company, the Trustee shall make such
information available to the Company for such purpose) and to
Holders of Registered Securities by mailing to such Holders at their
addresses as they shall appear on the Security Register. Notice
mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder
shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to
other Holders. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this
Section 10.2, it is duly given, whether or not the addressee
receives it.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 10.3 Certificate And Opinion As To Conditions
Precedent. Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been
complied with.
Section 10.4 Statements Required In Certificate Or
Opinion. Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each person signing such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or
opinion contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied
with; provided, however, that, with respect to matters of fact,
an Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it
is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several
documents.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such
officer knows that the certificate or opinion or representations
with respect to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise
o reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar
as it relates to factual matters or information that is in the
possession of the Company, upon the certificate, statement or
opinion of or representations by an officer or officers of the
Company, unless such counsel knows that the certificate, statement
or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be base as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants unless such
officer or counsel, as the case may be, knows that the certificate
or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate or opinion
of any independent firm of public accountants filed with the Trustee
shall contain a statement that such firm is independent.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 10.5 Evidence Of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may deem and
treat the Holder of any Unregistered Security and the Holder of any
coupon as the absolute owner of such Unregistered Security or coupon
(whether or not such Unregistered Security or coupon shall be
overdue) for the purpose of receiving payment thereof or on account
thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The fact of the holding by
any Holder of an Unregistered Security, and the identifying number
of such Security and the date of his holding the same, may be proved
by the production of such Security or by a certificate executed by
any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof
a Security bearing a specified identifying number was deposited with
or exhibited to such trust company, bank, banker or recognized
securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in
any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination
of such holding (1) another certificate bearing a later date issued
in respect of the same Securities shall be produced or (2) the
Security specified in such certificate shall be produced by some
other Person, or (3) the Security specified in such certificate
shall have ceased to be outstanding. Subject to Article 7, the fact
and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in any
other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or
the Trustee may deem and treat the person in whose name any
Registered Security shall be registered upon the Security Register
for such series as the absolute owner of such Registered Security
(whether or not such Registered Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture,
interest on such Registered Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or
the Trustee shall be affected by any notice to the contrary.
Section 10.6 Rules By Trustee, Paying Agent Or Registrar.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Paying Agent or Registrar may make reasonable rules
for its functions.
Section 10.7 Payment Date Other Than A Business Day. If
any date for payment of Principal or interest on any Security shall
not be a Business Day at any place of payment, then payment of
Principal of or interest on such Security, as the case may be, need
not be made on such date, but may be made on the next succeeding
Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of
such payment for the period from and after such date.
Section 10.8 Governing Law. The rights and duties of the
parties under this Indenture shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the State
of New York.
Section 10.9 No Adverse Interpretation Of Other
Agreements. This Indenture may not be used to interpret another
indenture or loan or debt agreement of the Company or any Subsidiary
of the Company. Any such indenture or agreement may not be used to
interpret this Indenture.
Section 10.10 Successors. All agreements of the Company
in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
Section 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
Section 10.12 Separability. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 10.13 Table Of Contents, Headings, Etc. The
Table of Contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or
restrict any of the terms and provisions hereof.
Section 10.14 Incorporators, Shareholders, Officers And
Directors Of Company Exempt From Individual Liability. No recourse
under or upon any obligation, covenant or agreement contained in
this Indenture or any indenture supplemental hereto, or in any
Security or any coupons appertaining thereto, or because of any
indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future
shareholder, officer, director or employee, as such, of the Company
or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities
and the coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the
coupons appertaining thereto.
Section 10.15 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the Principal
of or interest on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a Business Day, then, to the extent
permitted by applicable law, the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the Business Day preceding the day on
which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery
pursuant to any Judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in
the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount,
if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum
due under this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written
above.
(SEAL) ARROW ELECTRONICS, INC.,
ATTEST: as the Company
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- ---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Title: Executive Vice President
Chief Financial Officer and Secretary
(SEAL) BANK OF MONTREAL TRUST COMPANY,
ATTEST: as the Trustee
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary Title: Vice President
STATE OF __NEW YORK__ )
)
COUNTY OF __NEW YORK__)
BEFORE ME, the undersigned authority, on this __22nd__ day of
__January__ 1997, personally appeared __▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇__, of
Arrow Electronics, Inc., a New York corporation, known to me (or
proved to me by introduction upon the oath of a person known to me)
to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed
the same as the act of such corporation for the purposes and
consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS __22nd__ DAY OF
__January__, 1997.
(SEAL)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
NOTARY PUBLIC, STATE OF __New York__
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Commission Expires: March 25,1998
STATE OF__NEW YORK__ )
)
COUNTY OF__NEW YORK__)
BEFORE ME, the undersigned authority, on this __22nd__ day
of __January__, 1997, personally appeared _Therese Gaballah__, of Bank
of Montreal Trust Company, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person
and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that he/she executed the same as the act of
such trust for the purposes and consideration herein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS __22nd__ DAY OF
__January__, 1997.
(SEAL)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
NOTARY PUBLIC, STATE OF __New York__
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Commission Expires:August 27, 1998