EXHIBIT 4.2
REINSURANCE GROUP OF AMERICA, INCORPORATED
To
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as Trustee
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Subordinated Indenture
Dated as of , 200
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TABLE OF CONTENTS
Page
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ARTICLE I.......................................................................................1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................................1
Section 1.1. Definitions......................................................1
Section 1.2. Compliance Certificates and Opinions............................12
Section 1.3. Form of Documents Delivered to Trustee..........................13
Section 1.4. Notices, etc., to Trustee and Company...........................14
Section 1.5. Notice to Holders; Waiver.......................................14
Section 1.6. Conflict with Trust Indenture Act...............................15
Section 1.7. Effect of Headings and Table of Contents........................15
Section 1.8. Successors and Assigns..........................................15
Section 1.9. Separability Clause.............................................15
Section 1.10. Benefits of Indenture..........................................15
Section 1.11. Governing Law..................................................16
Section 1.12. Legal Holidays.................................................16
Section 1.13. No Security Interest Created...................................16
Section 1.14. Liability Solely Corporate.....................................16
ARTICLE II.....................................................................................17
DEBT SECURITY FORMS..........................................................17
Section 2.1. Forms Generally.................................................17
Section 2.2. Form of Trustee's Certificate of Authentication.................17
Section 2.3. Securities in Global Form.......................................18
ARTICLE III....................................................................................18
THE DEBT SECURITIES..........................................................18
Section 3.1. Amount Unlimited; Issuable in Series............................18
Section 3.2. Denominations...................................................23
Section 3.3. Execution, Authentication, Delivery and Dating..................23
Section 3.4. Temporary Debt Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities; Global Notes
Representing Registered Securities....................................25
Section 3.5. Registration, Transfer and Exchange.............................31
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities...........33
Section 3.7. Payment of Interest; Interest Rights Preserved..................34
Section 3.8. Cancellation....................................................36
Section 3.9. Computation of Interest.........................................37
Section 3.10. Currency of Payments in Respect of Debt Securities.............37
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Section 3.11. Judgments......................................................40
Section 3.12. Exchange Upon Default..........................................41
ARTICLE IV.....................................................................................41
SATISFACTION AND DISCHARGE...................................................41
Section 4.1. Satisfaction and Discharge of Indenture.........................41
Section 4.2. Application of Trust Money......................................43
ARTICLE V......................................................................................43
REMEDIES.................................................................... 43
Section 5.1. Events of Default...............................................43
Section 5.2. Acceleration of Maturity; Rescission and Annulment..............44
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................................45
Section 5.4. Trustee May File Proofs of Claim................................46
Section 5.5. Trustee May Enforce Claims Without Possession of
Debt Securities.......................................................47
Section 5.6. Application of Money Collected..................................47
Section 5.7. Limitation on Suits.............................................48
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................................48
Section 5.9. Restoration of Rights and Remedies..............................49
Section 5.10. Rights and Remedies Cumulative.................................49
Section 5.11. Delay or Omission Not Waiver...................................49
Section 5.12. Control by Holders.............................................49
Section 5.13. Waiver of Past Defaults........................................50
Section 5.14. Undertaking for Costs..........................................50
Section 5.15. Waiver of Stay or Extension Laws...............................51
ARTICLE VI.....................................................................................51
THE TRUSTEE..................................................................51
Section 6.1. Certain Duties and Responsibilities.............................51
Section 6.2. Notice of Defaults..............................................52
Section 6.3. Certain Rights of Trustee.......................................53
Section 6.4. Not Responsible for Recitals or Issuance of Debt
Securities............................................................54
Section 6.5. May Hold Debt Securities........................................54
Section 6.6. Money Held in Trust.............................................54
Section 6.7. Compensation and Reimbursement..................................54
Section 6.8. Disqualification; Conflicting Interests.........................55
Section 6.9. Corporate Trustee Required; Eligibility.........................61
Section 6.10. Resignation and Removal; Appointment of
Successor.............................................................61
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Section 6.11. Acceptance of Appointment by Successor.........................63
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business..............................................................64
Section 6.13. Preferential Collection of Claims Against Company..............64
Section 6.14. Appointment of Authenticating Agent............................68
ARTICLE VII....................................................................................69
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY...............................................................69
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders...............................................................69
Section 7.2. Preservation of Information; Communication to
Holders...............................................................70
Section 7.3. Reports by Trustee..............................................71
Section 7.4. Reports by Company..............................................73
ARTICLE VIII...................................................................................74
CONCERNING THE HOLDERS.......................................................74
Section 8.1. Acts of Holders.................................................74
Section 8.2. Proof of Ownership; Proof of Execution of
Instruments by Holder.................................................74
Section 8.3. Persons Deemed Owners...........................................75
Section 8.4. Revocation of Consents; Future Holders Bound....................76
ARTICLE IX.....................................................................................76
HOLDERS' MEETINGS............................................................76
Section 9.1. Purposes of Meetings............................................76
Section 9.2. Call of Meetings by Trustee.....................................77
Section 9.3. Call of Meetings by Company or Holders..........................77
Section 9.4. Qualifications for Voting.......................................77
Section 9.5. Regulations.....................................................77
Section 9.6. Voting..........................................................78
ARTICLE X......................................................................................78
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE..............................................................78
Section 10.1. Company May Consolidate, etc., Only on Certain
Terms.................................................................78
Section 10.2. Successor Corporation Substituted..............................79
ARTICLE XI.....................................................................................79
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SUPPLEMENTAL INDENTURES......................................................79
Section 11.1. Supplemental Indentures Without Consent of
Holders...............................................................79
Section 11.2. Supplemental Indentures With Consent of Holders................81
Section 11.3. Execution of Supplemental Indentures...........................82
Section 11.4. Effect of Supplemental Indentures..............................82
Section 11.5. Conformity with Trust Indenture Act............................83
Section 11.6. Reference in Debt Securities to Supplemental
Indentures............................................................83
Section 11.7. Notice of Supplemental Indenture...............................83
ARTICLE XII....................................................................................83
COVENANTS....................................................................83
Section 12.1. Payment of Principal, Premium and Interest.....................83
Section 12.2. Officer's Certificate as to Default............................83
Section 12.3. Maintenance of Office or Agency................................84
Section 12.4. Money for Debt Securities; Payments To Be Held in
Trust.................................................................85
Section 12.5. Corporate Existence............................................86
Section 12.6. Purchase of Debt Securities by Company.........................87
Section 12.7. Waiver of Certain Covenants....................................87
ARTICLE XIII...................................................................................87
REDEMPTION OF DEBT SECURITIES................................................87
Section 13.1. Applicability of Article.......................................87
Section 13.2. Election to Redeem; Notice to Trustee..........................87
Section 13.3. Selection by Trustee of Debt Securities to Be
Redeemed..............................................................88
Section 13.4. Notice of Redemption...........................................88
Section 13.5. Deposit of Redemption Price....................................89
Section 13.6. Debt Securities Payable on Redemption Date.....................89
Section 13.7. Debt Securities Redeemed in Part...............................90
ARTICLE XIV....................................................................................91
SINKING FUNDS................................................................91
Section 14.1. Applicability of Article.......................................91
Section 14.2. Satisfaction of Mandatory Sinking Fund Payments
with Debt Securities..................................................91
Section 14.3. Redemption of Debt Securities for Sinking Fund.................91
ARTICLE XV.....................................................................................93
DEFEASANCE...................................................................93
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Section 15.1. Applicability of Article.......................................93
Section 15.2. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations................................................94
Section 15.3. Deposited Moneys and U.S. Government Obligations
to Be Held In Trust...................................................96
Section 15.4. Repayment to Company...........................................96
ARTICLE XVI....................................................................................96
CONVERSION...................................................................96
Section 16.1. Applicability; Conversion Privilege............................96
Section 16.2. Conversion Procedure; Conversion Price; Fractional
Shares................................................................96
Section 16.3. Adjustment of Conversion Price for Common Stock................98
Section 16.4. Consolidation or Merger of the Company........................101
Section 16.5. Notice of Adjustment..........................................101
Section 16.6. Notice in Certain Events......................................102
Section 16.7. Company to Reserve Stock; Registration; Listing...............103
Section 16.8. Taxes on Conversion...........................................103
Section 16.9. Conversion After Record Date..................................103
Section 16.10. Company Determination Final..................................104
Section 16.11. Trustee's Disclaimer.........................................104
ARTICLE XVII..................................................................................104
SUBORDINATION...............................................................104
Section 17.1. Agreement to Subordinate......................................104
Section 17.2. Certain Definitions...........................................104
Section 17.3. Liquidation; Dissolution; Bankruptcy; etc.....................105
Section 17.4. Default on Senior Indebtedness................................105
Section 17.5. When Distribution Must be Paid Over...........................106
Section 17.6. Notice by Company.............................................106
Section 17.7. Subrogation...................................................106
Section 17.8. Relative Rights...............................................107
Section 17.9. Subordination May Not Be Impaired By Company..................107
Section 17.10. Distribution.................................................107
Section 17.11. Rights of Trustee and Paying Agent...........................108
Section 17.12. Authorization to Effect Subordination........................108
ARTICLE XVIII.................................................................................108
EXTENDED INTEREST PERIOD....................................................108
Section 18.1. Extension of Interest Payment Period..........................108
Section 18.2. Notice of Extension...........................................108
Section 18.3. Limitation on Transactions....................................108
Section 18.4. Applicability of Article......................................108
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SUBORDINATED INDENTURE dated as of ____ __, 200_, (hereinafter the
"Indenture") between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri
corporation (hereinafter called the "Company"), having its principal executive
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and
____________________________________ (hereinafter called the "Trustee"), having
its principal office at ____________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds or other evidences of indebtedness (herein generally
called the "Debt Securities"), to be issued in one or more series, as in this
Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles or as provided with respect to any series of Debt
Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term "generally
accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder with respect to any series
of Debt Securities, shall mean such as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession which are in effect as
of the issuance date of such series of Debt Securities; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article III or Article VI, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.1.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" as used with respect to any Person shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise, provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by"
and "under common control with" shall have correlative meanings.
"Authenticating Agent" has the meaning specified in Section
6.14.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least
once a day, and customarily published for at least five days in each
calendar week, and of general circulation in the place in connection
with which the term is used or in the financial community of such
place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day in such city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.1, which is
payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any
Coupons.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act
2
hereunder or any director or directors and/or officer or officers of
the Company to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.1.
"CEDEL" means Cedel S.A.
"Closing Price" of the Common Stock shall mean the last
reported sale price of such stock (regular way) as shown on the
Composite Tape of the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, in case no such sale takes place on such day,
the average of the closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange
on which such stock is listed or admitted to trading), or, if it is not
listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices as reported in The Nasdaq
Stock Market, or if such stock is not so reported, the average of the
closing bid and asked prices as furnished by any member of the National
Association of Securities Dealers, Inc., selected from time to time by
the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, 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 on such date.
"Common Stock" shall mean the class of Common Stock, par value
$.01 per share, of the Company authorized at the date of this Indenture
as originally signed, or any other class of stock resulting from
successive changes or reclassifications of such Common Stock, and in
any such case including any shares thereof authorized after the date of
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this Indenture, and any other shares of stock of the Company which do
not have any priority in the payment of dividends or upon liquidation
over any other class of stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer,
the Chief Operating Officer or a Vice President and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Component Currency" has the meaning specified in Section
3.10(i).
"Conversion Agent" means any Person authorized by the Company
to receive Debt Securities to be converted into Common Stock on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may
at any time from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section
3.10(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii) the
ECU to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or (iii) any Currency unit other than the ECU to
be used for the purposes for which it was established. Notwithstanding
any term herein, or in any supplement hereto, to the contrary, in no
instance shall the Trustee be under any duty or obligation to determine
or monitor whether a Conversion Event has occurred. Upon receipt by the
Trustee of an Officers' Certificate of the Company certifying to the
effect that a Conversion Event has occurred, the Trustee shall be
entitled to rely exclusively thereon without independent investigation
on its part.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per share
of Common Stock at which the Debt Securities of such series are so
4
convertible pursuant to Section 3.1 with respect to such series, as the
same may be adjusted from time to time in accordance with Section 16.3.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at___________________________,
Attention: Corporate Trust Department.
"Corporation" includes corporations, limited liability
companies, limited partnerships, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to any Debt
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Company for
purposes of Section 3.10; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of the Company and
the Trustee at the time of such appointment, require such agent to make
the determinations required by this Indenture by a method consistent
with the method provided in this Indenture for the making of such
decision or determination.
"Current Market Price" on any date shall mean the average of
the daily Closing Prices per share of Common Stock for any thirty (30)
consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not
commence more than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 16.3(3), the "Current
Market Price" of the Common Stock shall mean the average of the daily
Closing Prices per share of Common Stock for the five (5) consecutive
Trading Days ending on the date of the distribution referred to in
Section 16.3(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
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"Defaulted Interest" has the meaning specified in Section 3.7.
"Discharged" has the meaning specified in Section 15.2.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code (or any successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts of
principal, premium, if any, and any interest respectively (on an
aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section 3.2
in the relevant Currency or Currency unit), payable on the basis of
such Market Exchange Rate sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer or any Assistant Treasurer
of the Company.
"Extended Interest Period" has the meaning specified in
Section 3.1.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
6
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the
values of the currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without
limitation, any temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon,
the bearer thereof.
"Indenture" means this Subordinated Indenture as originally
executed, or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and, unless the context otherwise
requires, shall include the terms of a particular series of Debt
Securities as established pursuant to Section 3.1.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only on a certain date,
means interest payable after such date, and, when used with respect to
a Bearer Security, includes any additional amounts payable on such
Bearer Security, if so provided pursuant to Section 3.1.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant Currency unit and
Dollars or such Foreign Currency calculated by the method specified
pursuant to Section 3.1 for the securities of the relevant series, (ii)
for any conversion of Dollars into any Foreign Currency, the noon (New
York City time) buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by
the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign
7
Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for
Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent,
if any, or if there shall not be a Currency Determination Agent, then
the Trustee, shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of
the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such
Currency or Currency unit in question, or such other quotations as the
Currency Determination Agent or the Trustee, as the case may be, shall
deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more than one
market for dealing in any Currency or Currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency or Currency unit shall be that upon which a
nonresident issuer of securities designated in such Currency or
Currency unit would purchase such Currency or Currency unit in order to
make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt Security or an installment
of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption, repayment or repurchase at the option of the Holder
thereof or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company)
and who shall be satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent
8
(other than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Debt Securities and any Coupons thereto pertaining;
provided, however, that if such Debt Securities are to be redeemed
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made and the date for such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company; provided, however,
that in determining whether the Holders of the requisite principal
amount of Debt Securities Outstanding have performed any Act hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding (provided, that
in connection with any offer by the Company or any obligor to purchase
Debt Securities, Debt Securities tendered by a Holder shall be
Outstanding until the date of purchase), except that, (i) in
determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities which the Trustee knows to be so owned
shall be so disregarded and (ii) the foregoing shall not apply at any
time when all of the Outstanding Debt Securities are owned by the
Company, the Trustee and/or any such Affiliate. Debt Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Debt Securities
and that the pledgee is not the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act hereunder,
the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2 and the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant
to Section 3.10(k).
"Overdue Rate" when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.1.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"Permanent Global Note" shall have the meaning given such term
in Section 3.4(b).
9
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.1.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.6 in lieu of a mutilated, lost, destroyed or
stolen Debt Security or a Debt Security to which a mutilated, lost,
destroyed or stolen Coupon appertains shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Debt Security or
the Debt Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section
3.1, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium, if
any, and accrued and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.1 which is registered as to principal
and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for that purpose pursuant to Section 3.1 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any vice president, the secretary, any assistant secretary or any
assistant vice president or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above
10
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5(a).
"Senior Indebtedness" has the meaning specified in Section
17.2.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Specified Amount" has the meaning specified in Section
3.10(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security or the Coupon,
if any, representing such installment of interest, as the date on which
the principal of such Debt Security or such installment of principal,
premium or interest is due and payable.
"Subsidiary" means, with respect to any specified Person, (i)
any corporation, association, or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such Person
or one or more Subsidiaries of such Person (or any combination
thereof).
"Temporary Global Note" shall have the meaning given such term
in Section 3.4(b).
"Trading Day" shall mean, with respect to the Common Stock, so
long as the Common Stock is listed or admitted to trading on the New
York Stock Exchange, a day on which the New York Stock Exchange is open
for the transaction of business, or, if the Common Stock is not listed
or admitted to trading on the New York Stock Exchange, a day on which
the principal national securities exchange on which the Common Stock is
listed is open for the transaction of business, or, if the Common Stock
is not so listed or admitted for trading on any national securities
exchange, a day on which The Nasdaq Stock Market is open for the
transaction of business.
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"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was
executed, except as provided in Section 11.5.
"United States" means the United States of America (including
the States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to
Section 3.1 until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Depositary" shall mean or include each Person who is then a U.S.
Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities
of any series shall mean the U.S. Depositary with respect to the Debt
Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 15.2.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after the title "Vice President."
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of
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Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.2) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
SECTION 1.5. NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers in The City of New York and, if Debt Securities of such
series are then listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, in a
daily newspaper in London or Luxembourg or in such other city or cities
specified pursuant to Section 3.1 or in any Debt Security on Business Days, the
first such publication to be not earlier than the earliest date and not later
than two Business Days prior to the latest date prescribed for the giving of
such notice; provided, however, that, in any case, any notice to Holders of
Floating Rate Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 3.1, shall be
sufficiently given if given in the manner specified pursuant to Section 3.1.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
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In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
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 on such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 1.6. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.8. SUCCESSORS AND ASSIGNS.
The Company shall have the right at all times to assign any of its
respective rights or obligations under the Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. All
covenants and agreements in this Indenture by the parties hereto shall bind
their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
SECTION 1.9. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt 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 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent
15
and their successors hereunder, and the Holders (and with respect to the
provisions of Article XVII, the holders of Senior Indebtedness), any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.11. GOVERNING LAW.
This Indenture, the Debt Securities and the Coupons shall be governed
by and construed in accordance with the internal laws of the State of New York.
SECTION 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
SECTION 1.13. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities or Coupons, express
or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and
in effect in any jurisdiction where property of the Company or its Subsidiaries
is or may be located.
SECTION 1.14. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any shareholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, shareholder, officer or director, past,
present or future, of the Company (or any incorporator, shareholder, officer or
director of any such predecessor or successor corporation), either directly or
indirectly through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of
16
the Debt Securities or Coupons or to be implied herefrom or therefrom; and that
any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issue of Debt Securities; provided, however, that nothing
herein or in the Debt Securities or Coupons contained shall be taken to prevent
recourse to and the enforcement of the liability, if any, of any shareholder or
subscriber to capital stock upon or in respect of the shares of capital stock
not fully paid.
ARTICLE II.
DEBT SECURITY FORMS
SECTION 2.1. FORMS GENERALLY.
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.3 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.1, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
17
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
--------------------------------------
--
--------------------------------------
--
By------------------------------------
--
Authorized Signatory
SECTION 2.3. SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.2.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE III.
THE DEBT SECURITIES
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 3.3)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series:
18
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
(2) the aggregate principal amount of such series of Debt
Securities and any limit, on the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 3.4, 3.5, 3.6, 11.6 or
13.7);
(3) the percentage of the principal amount at which the Debt
Securities of such series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity or upon
redemption thereof or the method by which such portion shall be
determined.
(4) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates or
the method by which such date or dates will be determined, on which the
principal of (and premium, if any, on) the Debt Securities of such
series are or may be payable (which, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the series
issued from time to time);
(5) the rate or rates (which may be variable or fixed) at
which the Debt Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which such interest, if any, shall accrue or the method by
which such date or dates shall be determined (which, in either case or
both, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), subject to the right, if any
such right is provided pursuant to this Section 3.1, of the Company to
defer or extend an Interest Payment Date and the duration of such
deferral or extension (an "Extended Interest Period"), and the Regular
Record Dates, if any, for the interest payable on such Interest Payment
Dates and the notice, if any, to Holders regarding the determination of
interest, the manner of giving such notice, the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months and any conditions or contingencies as to the
payment of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee (in the case of Registered
Securities) where the principal of (and premium, if any) and interest
on Debt Securities of the series shall be payable; the extent to which,
or the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid, if other than in the manner
provided in Section 3.7; the extent, if any, to which the provisions of
the last sentence of Section 12.1 shall apply to the Debt Securities of
the series; and the manner in which any principal of, or premium, if
any, on, any Global Note will be paid, if other than as set forth
elsewhere herein and
19
whether any Global Note will require any notation to evidence payment
of principal or interest;
(7) the obligation, if any, of the Company to redeem, repay,
purchase or offer to purchase Debt Securities of the series pursuant to
any mandatory redemption, sinking fund or analogous provisions or upon
other conditions or at the option of the Holder thereof and the period
or periods within which or the dates on which, the prices at which and
the terms and conditions upon which the Debt Securities of the series
shall be redeemed, repaid, purchased or offered to be purchased, in
whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series at its option and the period or periods
within which, or the date or dates on which, the price or prices at
which, and the terms and conditions upon which such Debt Securities may
be redeemed, if any, in whole or in part, at the option of the Company
or otherwise;
(9) if the coin or Currency in which the Debt Securities shall
be issuable is in Dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof
(except as provided in Section 3.4);
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(11) provisions, if any, for the defeasance or discharge of
certain of the Company's obligations with respect to Debt Securities of
the series;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto,
whether such Bearer Securities of the series may be exchanged for
Registered Securities of the series, as provided in Section 3.5(b) or
otherwise and the circumstances under which and the place or places at
which any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or
tax redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.4(b) shall
apply and, if so, such other procedure, and if the procedure set forth
in Section 3.4(b) shall apply, the forms of certifications to be
delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies
in which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the
Debt Securities of the
20
series may be made, and the particular provisions applicable thereto
and, if applicable, the amount of Debt Securities of the series which
entitles the Holder of a Debt Security of the series or its proxy to
one vote for purposes of Section 9.5;
(15) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Debt Securities are denominated or payable without such election, in
addition to or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid
if such election is made;
(16) the date as of which any Debt Securities of the series
shall be dated, if other than as set forth in Section 3.3;
(17) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index, including, but not limited to,
an index based on a Currency or Currencies other than that in which the
Debt Securities are denominated or payable, or any other type of index,
the manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(19) the designation of the original Currency Determination
Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.1;
(22) any addition to, or modification or deletion of, any
term or condition relating to subordination, Events of Default or
covenants provided for with respect to Debt Securities of the series,
including, without limitation, Article XVII;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Debt Security
in global form (representing all of the Outstanding Bearer Securities
of the series) payable in respect of any Interest Payment Date prior to
the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Debt
21
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, (y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Debt Securities of the series and the
terms upon which interests in a permanent Global Note, if any, may be
exchanged for definitive Debt Securities of the series and (z) the
cities and the Authorized Newspapers designated for the purposes of
giving notices to Holders;
(24) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Notes and, in
such case, the U.S. Depositary or any Common Depositary for such Global
Note or Notes; and if the Debt Securities of the series are issuable
only as Registered Securities, the manner in which and the
circumstances under which Global Notes representing Debt Securities of
the series may be exchanged for Registered Securities in definitive
form, if other than, or in addition to, the manner and circumstances
specified in Section 3.4(c);
(25) the designation, if any, of any depositaries, trustees
(other than the applicable Trustee), Paying Agents, Authenticating
Agents, Security Registrars (other than the Trustee) or other agents
with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and
terms of such certificates, documents or conditions;
(27) whether the Debt Securities of such series will be
convertible into shares of Common Stock and, if so, the terms and
conditions, which may be in addition to or in lieu of the provisions
contained in the Indenture, upon which such Debt Securities will be so
convertible, including the conversion price and the conversion period;
(28) the portion of the principal amount of the Debt
Securities which will be payable upon declaration of acceleration of
the maturity thereof, if other than the principal amount thereof;
(29) The nature, content and date for reports by the Company
to the holders of the Debt Securities;
(30) provisions relating to the subordination of the Debt
Securities, if other than as set forth in Article XVII;
(31) whether Article XVIII will apply to the Debt Securities
of the series, and any addition to, or modification or deletion of,
Article XVIII; and
(32) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to
22
time as to Debt Securities of a series if so provided in or established pursuant
to the authority granted in a Board Resolution or in any such indenture
supplemental hereto, and except as may otherwise be provided in or pursuant to
such Board Resolution and (subject to Section 3.3) set forth in such Officers'
Certificate, or in any such indenture supplemental hereto. All Debt Securities
of any one series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional Debt Securities of
such series.
If any of the terms of a series of Debt Securities is established in or
pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.1 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such
23
Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Debt Securities such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue. If any Debt
Security shall be represented by a permanent Global Note, then, for purposes of
this Section and Section 3.4, the notation of a beneficial owner's interest
therein upon original issuance of such Debt Security or upon exchange of a
portion of a temporary Global Note shall be deemed to be delivery in connection
with the original issuance of such beneficial owner's interest in such permanent
Global Note. Except as permitted by Section 3.6 or 3.7, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(1) the authentication order furnished by the Company to the
Trustee in connection with the authentication and delivery of such Debt
Securities and Coupons conforms to the requirements of this Indenture
and constitutes sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons
are consistent with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities and Coupons have been established in a supplemental
indenture, the execution and delivery of such supplemental indenture
has been duly authorized by all necessary corporate action of the
Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(4) the execution and delivery of such Debt Securities and
Coupons have been duly authorized by all necessary corporate action of
the Company and such Debt Securities and Coupons have been duly
executed by the Company and, assuming due authentication by the Trustee
and delivery by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms,
entitled to the benefit of the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law)
24
and subject to such other exceptions as counsel shall request and as to
which the Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of
Debt Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or permanent or other definitive
Bearer Security in global form) shall be dated as of the date of original
issuance of the first Debt Security of such series to be issued, except as
otherwise provided pursuant to Section 3.1 with respect to the Bearer Securities
of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.4. TEMPORARY DEBT SECURITIES; EXCHANGE OF
TEMPORARY GLOBAL NOTES FOR DEFINITIVE BEARER SECURITIES; GLOBAL NOTES
REPRESENTING REGISTERED SECURITIES.
(a) Pending the preparation of definitive Registered Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities may determine,
as conclusively evidenced by their execution of such Registered Securities.
Every such temporary Registered Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer
25
Securities, such temporary Debt Securities may be in global form, representing
such of the Outstanding Debt Securities of such series as shall be specified
therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.5 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 3.3.
Until so exchanged, the temporary Registered Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.1, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note shall
be surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, at such address as the Trustee may specify and
26
following such surrender, the Trustee shall (1) endorse the temporary Global
Note to reflect the reduction of its principal amount by an equal aggregate
principal amount of such Debt Security, (2) endorse the applicable permanent
Global Note, if any, to reflect the initial amount, or an increase in the amount
of Debt Securities represented thereby, (3) manually authenticate such
definitive Debt Securities (including any permanent Global Note), (4) deliver
such definitive Debt Securities to the Holder thereof or, if such definitive
Debt Security is a permanent Global Note, deliver such permanent Global Note to
the Common Depositary to be held outside the United States for the accounts of
the Euro-clear Operator or CEDEL, as the case may be, for credit to the
respective accounts at Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been canceled in accordance with Section 3.8 hereof; provided, however,
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear Operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder of
the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent Global Note) shall instruct the
Euro-clear Operator or CEDEL, as the case may be, to request such exchange on
its behalf and shall deliver to the Euro-clear Operator or CEDEL, as the case
may be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as
27
the case may be, may be exchanged, in whole or from time to time in part, for
definitive Debt Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary Global Note or such
permanent Global Note, an equal aggregate principal amount of definitive Debt
Securities of the same series of authorized denominations and of a like Stated
Maturity and with like terms and conditions, as the portion of such temporary
Global Note or such permanent Global Note to be exchanged, which, unless the
Debt Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as contemplated by Section 3.1, shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that definitive
Bearer Securities shall be delivered in exchange for a portion of the temporary
Global Note or the permanent Global Note only in compliance with the
requirements of the second preceding paragraph. On or prior to the forty-fifth
day following receipt by the Trustee of such notice with respect to a Debt
Security, or, if such day is not a Business Day, the next succeeding Business
Day, the temporary Global Note or the permanent Global Note, as the case may be,
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Debt Securities without charge following such surrender, upon the
request of the Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the permanent Global
Note to reflect the reduction of its principal amount by the aggregate principal
amount of such Debt Security, (2) cause the terms of such Debt Security and
Coupons, if any, to be entered on a definitive Debt Security, (3) manually
authenticate such definitive Debt Security, and (4) if a Bearer Security is to
be delivered, deliver such definitive Debt Security to an address outside the
United States to the Euro-clear Operator or CEDEL, as the case may be, for or on
behalf of the beneficial owner thereof, in exchange for a portion of such
temporary Global Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only to an address outside
the United States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date upon
28
delivery by the Euro-clear Operator or CEDEL to the Trustee of a certificate or
certificates substantially in the form set forth in Exhibit B to this Indenture,
for credit without further interest on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial owners of such
temporary Global Note on such Interest Payment Date and who have each delivered
to the Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.4.
With respect to Exhibits A and B to this Indenture, the Company may, in
its discretion and if required or desirable under applicable law or as set forth
in any Board Resolution or Supplemental Indenture with respect to any Series of
Debt Securities, substitute one or more other forms of such exhibits for such
exhibits, eliminate the requirement that any or all certificates be provided, or
change the time that any certificate may be required, provided that such
substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section 3.1 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.5,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
29
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series. If
a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.1 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered
30
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars or the terms of any series of
Debt Securities may provide otherwise.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.1, the
provisions of this Section 3.5(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.1 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all
31
unmatured Coupons and any matured Coupons in default attached thereto. If the
Holder of a Bearer Security is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 12.3, interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.1, in no event
may Registered Securities, including Registered Securities received in exchange
for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
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No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.4(b) or 3.6. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption under Section 13.3 and
ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office, or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security or any Coupon, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Debt Security or Coupon
has been acquired by a bona fide purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding, and, in the case of a Coupon Security,
with such Coupons attached thereto that neither gain nor loss in interest shall
result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.3, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1 or except as otherwise provided in this
Section 3.6, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
33
Every new Debt Security or Coupon of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security or Coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.1 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.1 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.1, by wire transfer to an account designated by the Registered Holder.
(b) Interest on any Coupon Security which is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the
Holder of the Coupon which has matured on such Interest Payment Date upon
surrender of such Coupon on such Interest Payment Date at the Corporate Trust
Office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.1.
Interest on any Bearer Security (other than a Coupon Security) which is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such Interest Payment Date at the
Corporate Trust Office of the Trustee or at such other Place of Payment
maintained by the Company outside the United States specified pursuant to
Section 3.1.
Unless otherwise specified pursuant to Section 3.1, at the direction of
the Holder of any Bearer Security or Coupon payable in Dollars, payment on such
Bearer Security or Coupon will be made by check drawn on a bank in The City of
Boston or, if agreeable to the Trustee, by wire transfer to a Dollar account
maintained by such Holder outside the United States. If such payment at the
offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.1, at the
direction of the
34
Holder of any Bearer Security or Coupon payable in a Foreign Currency, payment
on such Bearer Security or Coupon will be made by a check drawn on a bank
outside the United States or by wire transfer to an appropriate account
maintained by such Holder outside the United States. Except as provided in this
paragraph, no payment on any Bearer Security or Coupon will be made by mail to
an address in the United States or by wire transfer to an account in the United
States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency unit in
which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.1 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which date shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the Holders of such Registered Securities at their
addresses as they appear in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment
35
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.5
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.8. CANCELLATION.
Unless otherwise specified pursuant to Section 3.1 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Registered Securities and
matured Coupons so delivered shall be promptly canceled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be canceled or held
for reissuance. Bearer Securities and unmatured Coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.5
or in replacement of mutilated, lost, stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related Coupons pursuant to Section 3.6. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the Trustee
for cancellation any Debt Securities or Coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously authenticated
hereunder which the Company has not issued, and all Debt Securities or Coupons
so delivered shall be promptly canceled by the Trustee. No Debt Securities or
Coupons shall be authenticated in lieu of or in exchange for any Debt Securities
or Coupons canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities and Coupons held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Debt Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.4 hereof and substantially in the form of Exhibit
B hereto, to be given by the Euro-clear Operator or
36
CEDEL, have been duly presented to the Trustee by the Euro-clear Operator or
CEDEL, as the case may be. Permanent Global Notes shall not be destroyed until
exchanged in full for definitive Debt Securities or until payment thereon is
made in full.
SECTION 3.9. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.10. CURRENCY OF PAYMENTS IN RESPECT OF DEBT SECURITIES.
(a) Except as otherwise specified pursuant to Section 3.1 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (c) below or the Holders of which have
not made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.1 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below (and provided that in no instance may such
election be made after a defeasance pursuant to Article XV or during the
continuance of an Event of Default), to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election in the applicable
supplemental indenture by delivering to the Trustee a written election, to be in
form and substance satisfactory to the Trustee, not later than the close of
business on the Election Date immediately preceding the applicable payment date.
If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change or election may
be made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or notice of
redemption has been given by the Company pursuant to Article XIII). Any Holder
of any such Registered Security who shall not have delivered any such election
to the Trustee by the close of business on the applicable Election Date will be
paid the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.1, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice
37
specifying, in the Currency in which each series of the Registered Securities is
payable, the respective aggregate amounts of principal of (and premium, if any)
and any interest on the Registered Securities to be paid on such payment date,
specifying the amounts so payable in respect of the Registered Securities as to
which the Holders of Registered Securities denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph (c) above.
If the election referred to in paragraph (c) above has been provided for
pursuant to Section 3.1 and if at least one Holder has made such election, then,
on the second Business Day preceding each payment date, the Company will deliver
to the Trustee an Exchange Rate Officer's Certificate in respect of the Currency
payments to be made on such payment date. The Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (c) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent, if any, or, if there
shall not be a Currency Determination Agent, then by the Trustee, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (c)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Currency Determination Agent, and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Currency Determination Agent, and subject to the provisions of paragraph (i)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
38
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more Currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more Currencies with appropriate
Dollar equivalents at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including but not
limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such Currency unit, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at
the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the earlier of (i) the seventh
Business Day immediately preceding any payment date or (ii) the record
date with respect to any payment date, and with respect to the Maturity
shall mean the record date (if within 16 or fewer days prior to the
Maturity) immediately preceding the Maturity, and with respect to any
series of Debt Securities whose record date immediately preceding the
Maturity is more than 16 days prior to the Maturity or any series of
Debt Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes
39
and irrevocably binding upon the Company and all Holders of the Debt Securities
denominated or payable in the relevant Currency. In the event of a Conversion
Event with respect to a Foreign Currency, the Company, after learning thereof,
will immediately give written notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.5 to
the Holders) specifying the Conversion Date. In the event of a Conversion Event
with respect to the ECU or any other Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 1.5 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders of
Outstanding Debt Securities may perform an Act which requires that a specified
percentage of the Outstanding Debt Securities of all series perform such Act and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal of (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably,
the principal of (and premium, if any) and interest on the Outstanding Debt
Securities denominated in a Foreign Currency will be the amount in Dollars based
upon the Market Exchange Rate for Debt Securities of such series, as of the date
for determining whether the Holders entitled to perform such Act have performed
it, or as of the date of such decision or determination by the Trustee, as the
case may be.
(l) The Company hereby appoints itself as the initial Currency
Determination Agent and the Company shall be entitled to remove such agent at
any time; provided, however, that such removal shall not be effective and the
agent may not resign until a successor has been appointed by the Company and the
successor has accepted such appointment. The Trustee is under no duty or
obligation to serve in the capacity of Currency Determination Agent.
SECTION 3.11. JUDGMENTS.
If for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency
40
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Debt
Security. Any amount due from the Company under this Section 3.11 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security. In no event, however, shall the Company be required to pay more in the
Currency or Currency unit due hereunder or under such Debt Security at the
Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion over the amount due and
payable on the date of payment or distribution.
SECTION 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.1, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than (i) Debt
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6, (ii) Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived under Section 3.5,
(iii) Coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 13.6, and (iv) Debt Securities
41
and Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 12.4) have been delivered to the Trustee for
cancellation; or
(B) all Debt Securities and the Coupons, if any, of such
series not theretofore delivered to the Trustee for cancellation,
(i) have become due and payable by reason of the making of
a notice of redemption or otherwise, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.1, or if not so specified in the case
of (i), (ii) or (iii) of this subclause (B), has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in United States Dollars,
non-callable government securities, or a combination thereof, in such
amounts as will be (except as otherwise provided pursuant to Sections
3.1 or 3.10) sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on such Debt
Securities not delivered to the Trustee for cancellation for principal,
premium, if any and accrued interest to the date of such deposit (in
the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 12.4, shall
survive. If, after the deposit referred to in Section 4.1 has been made, (x) the
Holder of a Debt Security is entitled to, and does, elect pursuant to Section
3.10(c), to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.1 was made, or (y) if a Conversion Event occurs with
respect to the Currency in which the deposit was made or elected to be received
by the Holder pursuant to Section 3.10(c), then the indebtedness represented by
such Debt Security shall be fully discharged to the extent that the deposit made
with respect to such Debt Security shall be converted into the Currency in which
such payment is made.
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SECTION 4.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE V.
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt Securities
of any series means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Debt
Security or any payment with respect to the Coupons, if any, of such
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (and premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been
included in this Indenture solely for the benefit of Debt Securities of
a series other than such series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
43
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other
similar law, or the consent by it to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of
its creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default specified with respect to Debt
Securities of that series pursuant to Section 3.1.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities or indexed
securities, such portion of the principal amount of such Discount Securities as
may be specified in the terms of such Discount Securities or indexed securities)
of all the Debt Securities of such series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) plus
accrued and unpaid interest (and premium, if payable) shall become immediately
due and payable, provided, however, that payment of such principal and interest,
if any, on the Debt Securities of such series shall remain subordinated to the
extent provided in Article XVII. Upon payment of such amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Sections 3.1 or 3.10), all obligations of the Company in respect of
the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
44
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Sections 3.1 or 3.10) sufficient to
pay
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to any
Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each
Debt Security of such series or upon overdue payments on
any Coupons of such series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; provided,
however, that all sums payable under this clause (D) shall
be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Debt Security or any payment with respect to any
Coupons when such interest or payment becomes due and payable and such
default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Debt Securities of any series,
45
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are Discount
Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in
accordance with Section 5.2) (and premium, if any) and interest owing
and unpaid in respect of the Debt Securities and Coupons of such series
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee,
46
its agents and counsel) and of the Holders of such Debt Securities and
Coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
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 such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such series 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 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Subject to Article XVII, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the Debt
Securities or Coupons of any series in respect of which money has been collected
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7.
SECOND: To the payment of all Senior Indebtedness if and to
the extent required by Article XVII.
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
or
47
Coupons of such series, in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority
of any kind, according to the amounts due and payable on such Debt
Securities or Coupons for principal (and premium, if any) and interest,
respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7. LIMITATION ON SUITS.
No Holder of any Debt Security or Coupon of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.7, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7)
48
interest on such Debt Security or Coupon on the respective Stated Maturity or
Maturities expressed in such Debt Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment and interest thereon, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, 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 5.11. 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 any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that
49
the proceeding so directed would be unjustly prejudicial to the Holders
of Debt Securities of such series not joining in any such direction;
and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Debt Security of such series, or in the payment of
any sinking fund installment or analogous obligation with respect to
the Debt Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article XI cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
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SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
51
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series 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;
(4) the Trustee is under no obligation or duty to pay interest
on or invest any funds deposited with it except as specifically
provided in this Indenture, and all investment activities undertaken by
the Trustee, if any, shall be at and pursuant to the written
instruction of the Company; and
(5) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) Any opinion required or permitted to be delivered to the Trustee
hereunder may be addressed and delivered to the entity serving as Trustee
hereunder solely in its individual capacity and not in its capacity as Trustee,
fiduciary or as representative of the holders of such Debt Securities and
Coupons issued by the Company.
SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and provided, further, that in the case of any default of the
character specified in Section 5.1(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
52
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a) of this Indenture.
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be
53
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
SECTION 6.5. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or Coupons, and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.6. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for (i) interest on any money received by it hereunder except as otherwise
agreed with the Company or (ii) losses resulting from currency fluctuations or
any investments made pursuant to 6.1(c)(4).
SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the trustee in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and
54
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Debt Securities and
Coupons, if any, upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of amounts due on the Debt
Securities and Coupons.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture.
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series, then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as hereinafter defined) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of such
90-day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below, resign with respect to the Debt Securities
of such series, and the Company shall take prompt steps to have a successor
appointed, in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit to all Holders of Debt Securities of such series notice
of such failure.
Notice given pursuant to this Section 6.8(b) shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a) of this Indenture.
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(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Debt Securities of any series,
if there shall exist an Event of Default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) with respect to such
Debt Securities and
(1) the Trustee is trustee under this Indenture with respect to
the Outstanding Debt Securities of any series other than that series or
is trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debt Securities issued under this Indenture, provided that there shall
be excluded from the operation of this paragraph this Indenture with
respect to the Debt Securities of any series other than that series and
any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally and such other indenture
or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c)
of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to the Debt
Securities of such series and one or more other series or the
provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make
it necessary, in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Debt Securities of such
series and such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Debt Securities of such series
and such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debt Securities of
such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
56
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Company but may not
be at the same time an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a
director of the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depositary or in any other similar capacity, or,
subject to the provisions of paragraph (l) of this subsection, to act
as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Debt Securities issued under this Indenture
and securities issued under any other indenture under which the Trustee
is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default
or any anniversary of such Event of Default while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of
57
which would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this subsection. As to any such securities of which
the Trustee acquired ownership through becoming executor, administrator
or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a period of
not more than two years from the date of such acquisition, to the
extent that such securities included in such estate do not exceed 25%
of such voting securities or 25% of any such class of security.
Promptly after the dates of any such Event of Default and annually in
each succeeding year that such Event of Default continues, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to
make payment in full of the principal of (or premium, if any) or
interest on any of the Debt Securities when and as the same becomes due
and payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration
of such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph, all such securities so held by
the Trustee, with sole or joint control over such securities vested in
it, shall be considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; provided, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as
58
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time,
or has participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a participation in
the direct or indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate,
an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the
59
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting securities of
such person are entitled to cast in the direction or management of the
affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount", when used with regard to securities
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Debt Security of any series, or in the payment
of any sinking or purchase
60
fund installment, the Trustee shall not be required to resign as provided by
this Section if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that:
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority. If such Corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
61
(1) the Trustee shall fail to comply with Section 6.8(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.5 to the
Holders of Debt Securities of such series. Each
62
notice shall include the name of the successor Trustee with respect to the Debt
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates, but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such
63
successor Trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt
Securities and of the Coupons, if any, and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to
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the proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such
claim by the Trustee to a third Person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings or
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months, or
(D) to receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on
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account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustee and
the Holders and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose
of preserving any
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property which shall at any time be subject to the Lien of this
Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) The acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Debt Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
(3) The term "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 and payable upon demand.
(4) The term "self-liquidating paper" means any draft, ▇▇▇▇
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 which 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
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of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, ▇▇▇▇ of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt
Securities.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent, except that only the Trustee may authenticate Debt
Securities upon original issuance and pursuant to Section 3.6 hereof. Such
Authenticating Agent shall at all times be a Corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $10,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
or all series of Debt
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Securities, the Trustee for such series shall upon Company Request appoint a
successor Authenticating Agent, and the Company shall provide notice of such
appointment to all Holders of Debt Securities of such series in the manner and
to the extent provided in Section 1.5. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein. The Trustee for
the Debt Securities of such series agrees to pay to the Authenticating Agent for
such series from time to time reasonable compensation for its services, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 6.7. The Authenticating Agent for the Debt Securities of
any series shall have no responsibility or liability for any action taken by it
as such at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
As Trustee
By:________________________
As Authenticating Agent
By:________________________
Authorized Signatory
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular
Record Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.1 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in Section
7.1 upon receipt of a new list so furnished, destroy any information received by
it as Paying Agent (if so acting) hereunder upon delivering to itself as
Trustee, not earlier than 45 days after an Interest Payment Date, a list
containing the names and addresses of the Holders obtained from such information
since the delivery of the next previous list, if any, destroy any list delivered
to itself as Trustee which was compiled from information received by it as
Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt Securities, as
the case may be,
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whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.2(a), a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Debt Securities of such series or all Holders, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.2(b).
SECTION 7.3. REPORTS BY TRUSTEE.
(a) Within 60 days after January 15 of each year, commencing January
15, 2000, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.3, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8;
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(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.8(c) of this
Indenture;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Outstanding Debt
Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other obligor on
the Debt Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.3 shall be transmitted by
mail:
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(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section 7.3, to each Holder of a Debt Security of any series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.2(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed with the Company and the Company shall file such report
with each stock exchange upon which any Debt Securities of such series are
listed, with the Commission and also with the Company. The Company will notify
the Trustee when any series of Debt Securities are listed on any stock exchange.
SECTION 7.4. REPORTS BY COMPANY.
Unless otherwise specified with respect to a particular series of Debt
Securities pursuant to Section 3.1, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended.
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall continue to file with the Commission and
provide the Trustee and the Holders of each series of Debt Securities
with, without cost to each Holder, (a) within 90 days after the end of
each fiscal year, annual reports on Form 10-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in such successor or comparable form); (b) within
45 days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or comparable
form); and (c) promptly from time to time after the occurrence of an
event required to be therein reported, such other reports on Form 8-K
(or any successor or comparable form) containing the information
required to be contained therein (or required in any successor or
comparable form); provided, however, that the Company shall not be
obligated to file such reports with the Commission if the Commission
does not permit such filings. The Company will in all cases,
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without cost to each recipient, provide copies of such information to
the Holders of the Debt Securities of each series and, if they are not
permitted to file such reports with the Commission, shall make
available information to prospective purchasers and to securities
analysts and broker-dealers upon their request;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner
and to the extent provided in Section 7.3, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE VIII.
CONCERNING THE HOLDERS
SECTION 8.1. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article IX, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
SECTION 8.2. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS
BY HOLDER.
The ownership of Registered Securities of any series shall be proved by
the Security Register for such series or by a certificate of the Security
Registrar for such series.
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The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other ▇▇▇▇
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.1, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer
authorized to take acknowledgements of deeds, that the person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
SECTION 8.3. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.7) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to
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the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt Security or Coupon.
SECTION 8.4. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.2,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.8, upon all
future Holders of such Debt Security and all past, present and future Holders of
Coupons, if any, appertaining thereto and of any Debt Securities and Coupons
issued on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or Coupons or such other Debt Securities or Coupons.
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article IX for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article V;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
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SECTION 9.2. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 9.1, to be held at such time
or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.5. Such notice shall be given not
less than 10 days nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.3. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding Debt
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 10 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
SECTION 9.5. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee for
any series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.3, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
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Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified pursuant to
Section 3.1) of Debt Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Debt Securities of
such series held by him or instruments in writing duly designating him as the
person to vote on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly called pursuant to
the provisions of Section 9.2 or 9.3 may be adjourned from time to time by a
majority of such Holders present and the meeting may be held as so adjourned
without further notice.
SECTION 9.6. VOTING.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.2. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into or wind up
into (whether or not the Company is the surviving corporation) or sell, assign,
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
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(1) the Corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "successor corporation") shall be a
Corporation organized and existing under the laws of the United States
or any State or territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and coupons, if any, and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(4) such other conditions as may be specified under Section
3.1 with respect to any series of Debt Securities.
SECTION 10.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other Corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
rights of the Company and the assumption by such successor of the
covenants of the Company contained herein and in the Debt Securities
and Coupons, if any;
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(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities and the Coupons, if
any, appertaining thereto (and if such covenants are to be for the
benefit of less than all series, stating that such covenants are
expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series);
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable
or not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit the issuance of Debt
Securities of any series in uncertificated form, provided that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related Coupons in any material
respect;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply;
(6) to secure the Debt Securities or to provide that any of
the Company's obligations under any series of the Debt Securities shall
be guaranteed and the terms and conditions for the release or
substitution of such security or guarantee;
(7) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article IV or XV, provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of such series
or any other series of Debt Securities or any related Coupons in any
material respect;
(8) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Sections 2.1 and 3.1;
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.10;
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(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with any provision of this Indenture; or
(11) to modify the provisions of Section 17 (except, with
respect to any Outstanding Securities, to the extent prohibited by
clause 5 of Section 11.2);
provided such other provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities or Coupons, if any, of any series created
prior to the execution of such supplemental indenture in any material respect.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities and Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to any series
of Debt Securities pursuant to Section 3.1, (a) change the Stated
Maturity of the principal of, or installment of interest, if any, on,
any Debt Security, or (b) reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof
(provided that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or (c) change the
Stated Maturity of or reduce the amount of any payment to be made with
respect to any Coupon, or (d) change the Currency or Currencies in
which the principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or (e) reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or (f) reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or analogous provisions for any Debt
Security, or (g) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or (h) limit the
obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section
12.3, or (i) adversely affect the right to convert any Debt Security
into shares of Common Stock of the Company as may be provided pursuant
to Section 3.1;
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(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(4) modify any of the provisions of this Section, Section
5.13 or Section 12.7, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Debt Security of each series affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 12.7, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.10 and 11.1(9); or
(5) modify the provisions of this Indenture with respect to
the subordination of the Outstanding Securities of any series in a
manner adverse to the Holders thereof.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt securities and Coupons, if any, of any other
series.
SECTION 11.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that the supplemental indenture
conforms to the requirements of the Trust Indenture Act as then in effect. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a material way.
SECTION 11.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
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SECTION 11.5. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 11.6. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities and Coupons of such series.
SECTION 11.7. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 11.2, the Company shall
transmit, in the manner and to the extent provided in Section 1.5, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE XII.
COVENANTS
SECTION 12.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.1 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.6, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.1, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
SECTION 12.2. OFFICER'S CERTIFICATE AS TO DEFAULT.
Unless otherwise specifically provided for with respect to any series
of Debt Securities under Section 3.1, the Company will deliver to the Trustee,
on or before a date
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not more than four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the date hereof, a
certificate of the principal executive officer, principal financial officer or
principal accounting officer of the Company stating whether or not to the best
knowledge of the signer thereof the Company is in compliance with all covenants
and conditions under this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which such signer may
have knowledge. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 12.3. MAINTENANCE OF OFFICE OR AGENCY.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities of that series
that are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. If Debt Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption, where notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related Coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Debt Securities of that
series, if so provided pursuant to Section 3.1); provided, however, that if the
Debt Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Debt Securities of
that series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Debt Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for exchange or redemption and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency.
No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any
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address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the Debt Securities of
a series are denominated and payable in Dollars, payment of principal of and any
premium and interest on any Bearer Security (including any additional amounts
payable on Securities of such series, if so provided pursuant to Section 3.1)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City and State of New York, if (but only if) payment in Dollars
of the full amount of such principal, premium, interest or additional amounts,
as the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 12.4. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by 10:00 a.m. (New York
City time) or on each due date of the principal (and premium, if any) or
interest on any Debt Securities of such series, deposit with any such Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
Notwithstanding any term herein to the contrary, in no instance shall
the Trustee be under any duty or obligation (i) to maintain any office or to act
in any capacity as an agent for any purpose under this Indenture (or any
supplement hereto) outside the United States, or (ii) to act as a Paying Agent
in respect of any currency other than Dollars.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be transmitted in the manner and to the
extent provided by Section 1.5, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 12.5. CORPORATE EXISTENCE.
Subject to Article X, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
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SECTION 12.6. PURCHASE OF DEBT SECURITIES BY COMPANY.
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
SECTION 12.7. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 12.5 and 12.6 (and, if so
specified pursuant to Section 3.1, any other covenant not set forth herein and
specified pursuant to Section 3.1 to be applicable to the Securities of any
series, except as otherwise provided pursuant to Section 3.1) with respect to
the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XIII.
REDEMPTION OF DEBT SECURITIES
SECTION 13.1. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before their Maturity
shall be redeemable in accordance with their terms and (except as otherwise
provided pursuant to Section 3.1 for Debt Securities of any series) in
accordance with this Article.
SECTION 13.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.3, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
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SECTION 13.3. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
Except in the case of a redemption in whole of the Bearer Securities or
the Registered Securities of such series, if less than all the Debt Securities
of any series are to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.2 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.2 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 13.4. NOTICE OF REDEMPTION.
Notice of redemption 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 less
than 30 days and not more than 60 days prior to the Redemption Date to the
Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article XIII, in the manner provided in Section 1.5. Any notice
so given shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. Failure to give such notice, or any defect in
such notice to the Holder of any Debt Security of a series designated for
redemption, in whole or in part, shall not affect the sufficiency of any notice
of redemption with respect to the Holder of any other Debt Security of such
series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date,
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price,
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section
3.5(b) or otherwise, the last date on which such exchanges may be made,
and
(9) that the redemption is for a sinking fund, if such is the
case.
SECTION 13.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (New York City time) on the Redemption Date
for any Debt Securities, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 12.4) an amount of money in the
Currency or Currencies in which such Debt Securities are denominated (except as
provided pursuant to Section 3.1) sufficient to pay the Redemption Price of such
Debt Securities or any portions thereof which are to be redeemed on that date.
SECTION 13.6. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 3.1
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt
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Securities shall cease to bear interest. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 12.3)
and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of Coupons for such interest; and provided, further,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities which have a Stated Maturity on or prior to
the Redemption Date for such Debt Securities shall be payable according to the
terms of such Debt Securities and the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
SECTION 13.7. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.1 (in the case of Registered
Securities) and at an office of the Trustee, or at such other office or agency
of the Company outside the United States as is specified pursuant to Section 3.1
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
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ARTICLE XIV.
SINKING FUNDS
SECTION 14.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.1 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 14.2. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH
DEBT SECURITIES.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value, provided that such Debt Securities shall not have been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 14.3. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.1) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section 14.2
and whether the Company intends to exercise its rights to make a permitted
optional sinking
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fund payment with respect to such series. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Debt Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit Debt Securities as provided in Section 14.2 and without the right to make
any optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (to the extent it is acting as a Paying Agent with respect to Dollars)
or other Paying Agent appointed by the Company (or by the Company if the Company
is acting as its own Paying Agent) on the sinking fund payment date on which
such payment is made (or, if such payment is made before a sinking fund payment
date, on the sinking fund payment date immediately following the date of such
payment) to the redemption of Debt Securities of such series at the Redemption
Price specified in such Debt Securities with respect to the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee (to the extent it
is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or by the Company if the Company is acting as its own
Paying Agent) to the redemption of Debt Securities shall be added to the next
sinking fund payment received by the Trustee (to the extent it is acting as a
Paying Agent with respect to Dollars) or other Paying Agent appointed by the
Company (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.4) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section. Any and all sinking fund moneys with respect to
the Debt Securities of any particular series held by the Trustee (to the extent
it is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.4) on the last sinking
fund payment date with respect to Debt Securities of such series and not held
for the payment or redemption of particular Debt Securities of such series shall
be applied by the Trustee (to the extent it is acting as a Paying Agent with
respect to Dollars) or other Paying Agent appointed by the Company (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 13.3 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.4. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.6.
On or before 10:00 a.m. (New York City time) on each sinking fund
payment date, the Company shall pay to the Trustee (to the extent it is acting
as a Paying Agent with respect to Dollars) or other Paying Agent appointed by
the Company (or, if the
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Company is acting as its own Paying Agent, the Company shall segregate and hold
in trust as provided in Section 12.4) in cash a sum, in the Currency or
Currencies in which Debt Securities of such series are denominated (except as
provided pursuant to Sections 3.1 or 3.10), equal to the principal and any
interest accrued to the Redemption Date for Debt Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee, any Paying Agent nor the Company shall redeem any
Debt Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this paragraph) with
respect to the Debt Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee or applicable Paying Agent (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Debt Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such other
Paying Agent as provided above (or segregated by the Company) for that purpose
in accordance with the terms of this Article. 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 such sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of the Debt Securities and Coupons, if any, of such series;
provided, however, that in case such default or Event of Default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on
or prior to the next sinking fund payment date for the Debt Securities of such
series on which such moneys may be applied pursuant to the provisions of this
Section.
ARTICLE XV.
DEFEASANCE
SECTION 15.1. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.1, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.1 and subject to the proviso in the last sentence
of this paragraph) then the provisions of this Article shall be applicable
except as otherwise specified pursuant to Section 3.1 for Debt Securities of
such series. Defeasance provisions, if any, for Debt Securities denominated
and/or payable in a Foreign Currency or Currencies or for Bearer Securities may
be specified pursuant to Section 3.1; provided, however, that nothing herein or
therein shall obligate the Trustee (without its consent, at its sole option) to
hold or maintain any account, or act as Paying Agent with respect to, any
Foreign Currency or Currencies.
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SECTION 15.2. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Section 10.1 with respect to Debt Securities of any series (and, if
so specified pursuant to Section 3.1, any other obligation of the Company or
restrictive covenant added for the benefit of such series pursuant to Section
3.1) ("covenant defeasance option") at any time after the applicable conditions
set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest
on, the Outstanding Debt Securities of such series on the dates such
installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with
respect to the Debt Securities of any series;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after such date;
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(6) the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling from the Internal Revenue Service to the effect
that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge; and
(7) no event or condition shall exist that, pursuant to the
provisions of Article XVII, would prevent the Company from making
payments of the principal of (and premium, if any) or interest on the
Securities of such series and coupons appertaining thereto on the date
of such deposit.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(6) or Section 5.1(7) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
Notwithstanding the Company's exercise of the covenant defeasance option, the
Company may subsequently exercise the legal defeasance option.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.4, 3.5, 3.6, 12.3 and 15.3 and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such 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.
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SECTION 15.3. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.2 in respect of Debt Securities of a series shall be held
in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 15.4. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Debt Securities for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.2.
ARTICLE XVI.
CONVERSION
SECTION 16.1. APPLICABILITY; CONVERSION PRIVILEGE.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, the provisions of this Article XVI shall be applicable
to any Debt Securities that are convertible into Common Stock. If so provided
pursuant to Section 3.1 with respect to the Debt Securities of any series, the
Holder of a Debt Security of such series shall have the right, at such Holder's
option, to convert, in accordance with the terms of such series of Debt
Securities and this Article XVI, all or any part (in a denomination of, unless
otherwise specified pursuant to Section 3.1 with respect to Securities of such
series, $1,000 in principal amount or any integral multiple thereof) of such
Debt Security into shares of Common Stock or, as to any Debt Securities called
for redemption, at any time prior to the time and date fixed for such redemption
(unless the Company shall default in the payment of the Redemption Price, in
which case such right shall not terminate at such time and date).
SECTION 16.2. CONVERSION PROCEDURE; CONVERSION PRICE; FRACTIONAL
SHARES.
(a) Each Debt Security to which this Article is applicable shall be
convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified in pursuant to Section 3.1 with respect to the Debt
Securities of such
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series, into fully paid and nonassessable shares (calculated to the nearest
1/100th of a share) of Common Stock. The Debt Securities will be converted into
shares of Common Stock at the Conversion Price therefor. No payment or
adjustment shall be made in respect of dividends on the Common Stock or accrued
interest on a converted Debt Security except as described in Section 16.9. The
Company may, but shall not be required, in connection with any conversion of
Debt Securities, to issue a fraction of a share of Common Stock and, if the
Company shall determine not to issue any such fraction, the Company shall,
subject to Section 16.3(4), make a cash payment (calculated to the nearest cent)
equal to such fraction multiplied by the Closing Price of the Common Stock on
the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Debt Security duly
endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.1 (in the case of Registered Securities)
and at an office of the Conversion Agent or at such other place or places, if
any, outside of the United States as is specified pursuant to Section 3.1 (in
the case of Bearer Securities), and shall give written notice to the Company at
said office or place that he elects to convert the same and shall state in
writing therein the principal amount of Debt Securities to be converted and the
name or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued; provided, however, that no Debt
Security or portion thereof shall be accepted for conversion unless the
principal amount of such Debt Security or such portion, when added to the
principal amount of all other Debt Securities or portions thereof then being
surrendered by the Holder thereof for conversion, exceeds the then effective
Conversion Price with respect thereto. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured Coupon or
Coupons in default, such conversion may be effected if the Bearer Securities to
be surrendered for conversion are accompanied by payment in funds acceptable to
the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however that except as otherwise provided in Section 12.3, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States. If more
than one Debt Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares of Common Stock which shall be
deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Debt Securities (or specified portions thereof to the
extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Debt Security, or to his nominee or
nominees, certificates for the number of full shares of Common Stock to which he
shall be entitled as aforesaid, together, subject to the last sentence of
paragraph (a) above, with cash in lieu of any fraction of a share to which he
would otherwise be entitled. The Company shall not be required to deliver
certificates
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for shares of Common Stock while the stock transfer books for such stock or the
Security Register are duly closed for any purpose, but certificates for shares
of Common Stock shall be issued and delivered as soon as practicable after the
opening of such books or Security Register. A Debt Security shall be deemed to
have been converted as of the close of business on the date of the surrender of
such Debt Security for conversion as provided above, and the Person or Persons
entitled to receive the Common Stock issuable upon such conversion shall be
treated for all purposes as the record Holder or Holders of such Common Stock as
of the close of business on such date. In case any Debt Security shall be
surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Debt Securities so surrendered, without charge to such Holder (subject to the
provisions of Section 16.8), a new Debt Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Debt Security.
SECTION 16.3. ADJUSTMENT OF CONVERSION PRICE FOR COMMON STOCK.
The Conversion Price with respect to any Debt Security which is
convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common Stock to holders of Common Stock, (ii)
combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iii) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (iv)
make a distribution in shares of Common Stock to holders of Common
Stock, then the Conversion Price in effect immediately before such
action shall be adjusted so that the Holders of such Debt Securities,
upon conversion thereof into Common Stock immediately following such
event, shall be entitled to receive the kind and amount of shares of
capital stock of the Company which they would have owned or been
entitled to receive upon or by reason of such event if such Debt
Securities had been converted immediately before the record dated (or,
if no record date, the effective date) for such event. An adjustment
made pursuant to this Section 16.3(1) shall become effective
retroactively immediately after the record date in the case of a
dividend or distribution and shall become effective retroactively
immediately after the effective date in the case of a subdivision or
combination. For the purposes of this Section 16.3(1), each Holder of
Debt Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution (provided
that if the kind or amount of securities receivable upon such dividend,
subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, issue rights or
warrants to all
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holders of shares of its Common Stock entitling them (for a period
expiring within 45 days after the record date for such issuance) to
subscribe for or purchase shares of Common Stock (or securities
convertible into shares of Common Stock) at a price per share less than
the Current Market Price of the Common Stock at such record date
(treating the price per share of the securities convertible into Common
Stock as equal to (x) the sum of (i) the price for a unit of the
security convertible into Common Stock and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), the Conversion Price
with respect to such Debt Securities shall be adjusted so that it shall
equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by
a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities
so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock outstanding on the date
of issuance of securities which the aggregate offering price of the
total number of shares of securities so offered for subscription or
purchase (or the aggregate purchase price of the convertible securities
so offered plus the aggregate amount of any additional consideration
initially payable upon conversion of such securities into Common Stock)
would purchase at such Current Market Price of the Common Stock. Such
adjustment shall become effective retroactively immediately after the
record date for the determination of shareholders entitled to receive
such rights or warrants.
(3) In the case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, distribute to
all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and the Common Stock is not
changed or exchanged) cash, evidences of its indebtedness, securities
or assets (excluding (i) regular periodic cash dividends in amounts, if
any, determined from time to time by the Board of Directors, (ii)
dividends payable in shares of Common Stock for which adjustment is
made under Section 16.3(1) or (iii) rights or warrants to subscribe for
or purchase securities of the Company (excluding those referred to in
Section 16.3(2))), then in each such case the Conversion Price with
respect to such Debt Securities determined by dividing the Conversion
Price in effect immediately prior to the date of such distribution by a
fraction, the numerator of which shall be the Current Market Price of
the Common Stock on the record date referred to below, and the
denominator of which shall be such Current Market Price of the Common
Stock less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of
the portion of the cash or assets or evidences of indebtedness or
securities so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (provided that such denominator
shall never be less than 1.0); provided however, that no adjustment
shall be made with respect to any distribution of rights to purchase
securities of the Company if a Holder of Debt
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Securities would otherwise be entitled to receive such rights upon
conversion at any time of such Debt Securities into Common Stock unless
such rights are subsequently redeemed by the Company, in which case
such redemption shall be treated for purposes of this section as a
dividend on the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination
of shareholders entitled to receive such distribution; and in the event
that such distribution is not so made, the Conversion Price shall again
be adjusted to the Conversion Price which would then be in effect if
such record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 16.3(1), 16.3(2), and 16.3(3), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income
tax purposes.
(5) In any case in which this Section 16.3 shall require that
any adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five (5) Trading Days following the filing of the statement referred to
in Section 16.5) issuing to the Holder of any Debt Securities converted
after such record date the shares of Common Stock and other capital
stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company issuable
upon such conversion on the basis of the Conversion Price prior to
adjustment; provided, however, that the Company shall deliver to such
Holder a due ▇▇▇▇ or other appropriate instrument evidencing such
Holder's right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(6) All calculations under this Section 16.3 shall be made to
the nearest cent or one-hundredth of a share of security, with one-half
cent and 0.005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 16.3, the Company
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lesser adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1%
in such price. Any adjustments under this Section 16.3 shall be made
successively whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 16.3, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Stock into which the Debt Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to
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adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common
Stock contained in subparagraphs (1) through (6) of this Section 16.3,
and the provisions of Sections 16.1, 16.2 and 16.4 through 16.9 with
respect to the Common Stock shall apply on like or similar terms to any
such other shares and the determination of the Board of Directors as to
any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Stock or (ii) subject to 16.3(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
SECTION 16.4. CONSOLIDATION OR MERGER OF THE COMPANY.
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Stock or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt Securities would have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XVI (and assuming such holder of Common Stock failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance (provided that, if the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 16.4. The provisions of this
Section 16.4 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
SECTION 16.5. NOTICE OF ADJUSTMENT.
Whenever an adjustment in the Conversion Price with respect to a series
of Debt Securities is required:
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(1) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.5. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
SECTION 16.6. NOTICE IN CERTAIN EVENTS.
In case:
(1) of a consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article XVI;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.5, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article XVI,
or, if a record is not to be taken, the date as of which the holders of record
or Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article XVI is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2), or (3) of
this Section.
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SECTION 16.7. COMPANY TO RESERVE STOCK; REGISTRATION; LISTING.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Debt Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt Securities
would be held by a single holder); provided, however, that nothing contained
herein shall preclude the Company from satisfying its obligations in respect of
the conversion of the Debt Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. The Company shall from time
to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be increased if
the aggregate of the authorized amount of the Common Stock remaining unissued
and the issued shares of such Common Stock in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Debt Securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority before such shares or securities may be issued upon
such conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Debt Securities prior to such
delivery upon the principal national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
SECTION 16.8. TAXES ON CONVERSION.
The Company shall pay any and all documentary, stamp or similar issue
or transfer taxes that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Debt Securities pursuant hereto. The
Company shall not, however, be required to pay any such tax which may be payable
in respect of any transfer involved in the issue or delivery of shares of Common
Stock or the portion, if any, of the Debt Securities which are not so converted
in a name other than that in which the Debt Securities so converted were
registered (in case of Registered Securities), and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of such tax or has established to the satisfaction of the
Company that such tax has been paid.
SECTION 16.9. CONVERSION AFTER RECORD DATE.
If any Debt Securities are surrendered for conversion subsequent to the
record date preceding an Interest Payment Date but on or prior to such Interest
Payment Date (except Debt Securities called for redemption on a Redemption Date
between such record date and Interest Payment Date), the Holder of such Debt
Securities at the close of business on such record date shall be entitled to
receive the interest payable on such
103
Debt Securities on such Interest Payment Date notwithstanding the conversion
thereof. Debt Securities surrendered for conversion during the period from the
close of business on any record date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall (except in the case
of Debt Securities which have been called for redemption on a Redemption Date
within such period) be accompanied by payment in New York Clearing House funds
or other funds and in the Currency acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the Debt Securities
being surrendered for conversion. Except as provided in this Section 16.9, no
adjustments in respect of payments of interest on Debt Securities surrendered
for conversion or any dividends or distributions of interest on the Common Stock
issued upon conversion shall be made upon the conversion of any Debt Securities.
SECTION 16.10. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to this Article is conclusive.
SECTION 16.11. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debt Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article. Each Conversion Agent
other than the Company shall have the same protection under this Section as the
Trustee.
ARTICLE XVII.
SUBORDINATION
SECTION 17.1. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting any Debt Securities
agrees, that, unless otherwise specified pursuant to Section 3.1 hereof with
respect to any series of Debt Securities, the indebtedness evidenced by the Debt
Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article XVII, to the prior payment in full of all Senior
Indebtedness, and that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness, without any act or
notice of acceptance hereof or reliance hereon.
SECTION 17.2. CERTAIN DEFINITIONS.
"Senior Indebtedness" means the principal, premium, if any, and
interest on (i) all indebtedness of the Company, whether outstanding on the date
hereof or thereafter created, incurred or assumed (including, without
limitation, such indebtedness issued or to be issued under the Company's Senior
Indenture dated _________, 200_), that is for borrowed money, or evidenced by a
note or similar instrument given in connection with the acquisition of any
business, properties or assets, including securities, (ii) any indebtedness of
any other Person of the kind described in the preceding clause (i) for the
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payment of which the Company is responsible or liable as guarantor or otherwise
and (iii) amendments, modifications, renewals, extensions, deferrals and
refundings of any such indebtedness. Senior Indebtedness shall continue to be
Senior Indebtedness and to be entitled to the benefits of the subordination
provisions of this Article XVII irrespective of any amendment, modification or
waiver of any term of the Senior Indebtedness or extension or renewal of the
Senior Indebtedness. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include (A) indebtedness incurred for the purchase
of goods or materials or for services obtained in the ordinary course of
business and (B) any indebtedness which by its terms is expressly made pari
passu with or subordinated to the Securities.
SECTION 17.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY; ETC.
Unless otherwise specified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities, in the event of:
(1) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property;
(2) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings;
(3) any assignment by the company for the benefit of
creditors; or
(4) any other marshalling of the assets of the Company,
all Senior Indebtedness (including, without limitation, interest accruing after
the commencement of any such proceeding, assignment or marshalling of assets)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made by the Company on account of the
Debt Securities. In any such event, any payment or distribution, whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in the
subordination provisions of this Indenture with respect to the indebtedness
evidenced by the Debt Securities, to the payment of all Senior Indebtedness at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for the
provisions of this Article XVII) be payable or deliverable in respect of the
Debt Securities (including any such payment or distribution which may be payable
or deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities) shall be paid or delivered
directly to the holders of Senior Indebtedness, or to their representative or
trustee, in accordance with the priorities then existing among such holders
until all Senior Indebtedness shall have been paid in full.
SECTION 17.4. DEFAULT ON SENIOR INDEBTEDNESS.
Unless otherwise specified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities, if (i) the Company defaults in the payment of
any principal of (or premium, if any) or interest on any Senior Indebtedness
when the same becomes due and payable,
105
whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default occurs with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
and written notice of such event of default (requesting that payments on the
Debt Securities cease) is given to the Company by the holders of Senior
Indebtedness, then unless and until such default in payment or event of default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property or securities, by set-off or otherwise)
shall be made or agreed to be made on account of the Debt Securities or interest
thereon or in respect of any repayment, redemption, retirement, purchase or
other acquisition of the Debt Securities.
SECTION 17.5. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to the Trustee or any Holder at a time when a
Responsible Officer of the Trustee or such Holder has actual knowledge that
because of this Article XVII such distribution should not have been made to it,
the Trustee or such Holder who receives the distribution shall hold it in trust
for the benefit of, and, upon written request, shall pay it over to, the holders
of Senior Indebtedness as their interests may appear, or their agent or
representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all principal, premium,
if any, and interest then payable with respect to any Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XVII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XVII, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
SECTION 17.6. NOTICE BY COMPANY.
The Company shall promptly notify in writing the Trustee and any Paying
Agent of any facts known to the Company that would cause a payment with respect
to the Debt Securities to violate this Article XVII, but failure to give such
notice shall not affect the subordination of the Debt Securities to the Senior
Indebtedness provided in this Article XVII.
SECTION 17.7. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. After
all Senior Indebtedness is paid in full and until the Debt Securities are paid
in full, Holders shall be subrogated (equally
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and ratably with all other indebtedness as to which the right to receive payment
is pari passu with the Debt Securities) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness, and such payments or distributions received
by any Holder of Securities, by reason of such subrogation, of cash, securities
or other property which otherwise would be paid or distributed to the holders of
Senior Indebtedness, shall, as between the Company and its creditors other than
the holders of Senior Indebtedness, on the one hand, and the Holders of Debt
Securities, on the other, be deemed to be a payment by the Company on account of
Senior Indebtedness, and not on account of Debt Securities.
SECTION 17.8. RELATIVE RIGHTS.
This Article XVII defines the relative rights of Holders and holders of
Senior Indebtedness. Unless otherwise specified pursuant to Section 3.1 hereof
with respect to any series of Debt Securities, nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Debt Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article XVII to pay principal of
or interest on Debt Securities on the due date, the failure is still a Default
or Event of Default.
SECTION 17.9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness
constituting the Securities by any act or failure to act on the part of the
Company.
SECTION 17.10. DISTRIBUTION.
Upon any payment or distribution of assets of the Company referred to
in this Article XVII, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other Debt of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XVII.
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SECTION 17.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article XVII or any other
provision of this Indenture, neither the Trustee nor any Paying Agent shall be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment or distribution by the Trustee or such Paying Agent, or
the taking of any action by the Trustee or such Paying Agent, and the Trustee or
such Paying Agent may continue to make payments on the Debt Securities unless,
in the case of the Trustee, and in the case of such Paying Agent as long as the
Trustee is such Paying Agent, a Responsible Officer shall have received at the
Corporate Trust Office of the Trustee, and in the case of a Paying Agent other
than the Trustee, it shall have received, in each case at least two Business
Days prior to the date of such payment, written notice of facts that would cause
any such payment with respect to the Securities to violate this Article XVII.
The Trustee or any Paying Agent, as applicable, shall promptly provide a copy of
such notice to the Holders. Nothing in this Article XVII shall limit the right
of the holders of Senior Indebtedness to recover payments as contemplated
elsewhere in this Article XVII or impair the claims of, or payments to, the
Trustee under or pursuant to Section 6.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee subject
to Trust Indenture Act Sections 310(b) and 311. Any Paying Agent may do the
same.
SECTION 17.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Debt Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XVII (to
the extent the same may be modified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities), and appoints the Trustee his attorney-in-fact
for any and all such purposes.
ARTICLE XVIII.
EXTENDED INTEREST PERIOD
SECTION 18.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debt Securities of any series, to defer payments of interest by extending
the interest payment period of such Debt Securities for an Extended Interest
Period not exceeding 20 consecutive quarters, during which Extended Interest
Period no interest shall be due and payable; provided that no Extended Interest
Period may extend beyond the Stated Maturity for the principal of the Debt
Securities of such series. At the end of the Extended Interest Period, the
Company shall calculate (and deliver such calculation to the Trustee) and pay on
the next Interest Payment Date all interest accrued and unpaid on the Debt
Securities of such series, including any Additional Payments and Additional
Interest (together, the "Deferred Payments") that shall be payable to the
Holders of Registered Securities of such series on the first Regular Record Date
after the end of the Extended Interest Period. Before the termination of any
Extended Interest Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of such Debt
Securities. Upon the termination of any Extended Interest Period and upon the
payment of all Deferred Payments then due, the Company may commence a new
Extended Interest Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extended Interest Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest and Additional Interest accrued during an Extended
Interest Period.
SECTION 18.2. NOTICE OF EXTENSION.
(a) The Company shall give the Holders of such Debt Securities and the
Trustee written notice of its selection of such Extended Interest Period at
least two Business Days before the earlier of (i) the next succeeding Interest
Payment Date; or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to The New York Stock Exchange,
Nasdaq or other applicable national exchange or self-regulatory organization or
to holders of the Debentures.
(b) The quarter in which any notice is given pursuant to paragraph (a)
of this Section 18.2 shall be counted as one of the 20 quarters permitted in the
maximum Extended Interest Period permitted under Section 18.1.
SECTION 18.3. LIMITATION ON TRANSACTIONS.
If (a) the Company shall exercise its right to defer payment of
interest as provided in Section 18.1; or (b) there shall have occurred any Event
of Default, then (i) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in common stock of the Company, or any declaration of
a non-cash dividend in connection with the implementation of a shareholder
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, and (B) purchases
of common stock of the Company related to the rights under any of the Company's
benefit plans for its directors, officers or employees); (ii) the Company shall
not make any payment of principal of (and premium, if any) or interest on or
repay, repurchase or redeem any debt securities issued by the Company which rank
pari passu with or junior in interest to the Debt Securities of a series issued
under this Indenture; provided, however, that notwithstanding the foregoing the
Company may make payments pursuant to its obligations under the applicable
Preferred Securities Guarantee; and (iii) the Company shall not redeem, purchase
or acquire less than all of the Outstanding Debt Securities of such series.
SECTION 18.4. APPLICABILITY OF ARTICLE.
Notwithstanding anything in this Indenture to the contrary, the
provisions of this Article XVIII only shall apply to Debt Securities of any
series to which this Article expressly is made applicable, as specified pursuant
to Section 3.1 for any such series of Debt Securities.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:
---------------------------------
Title:
-------------------------------
Attest:
------------------------
108
Title:
Seal
---------------------------
as Trustee
By:
------------------------
Title:
--------------------
Attest:
------------------------
Title:
Seal
109
STATE OF )
: ss.:
COUNTY OF )
On the day of , 200 , before me personally came , to
me known, who, being by me duly sworn, did depose and say that he or she resides
at ; that he or she is
of Reinsurance Group of America, Incorporated, one of the corporations described
in and which executed the foregoing instrument; that he or she knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed his or her name thereto by like
authority.
------------------------
Notary Public
SEAL
STATE OF )
: ss.:
COUNTY OF )
On the day of , 200 , before me personally came
to me known, who, being by me duly sworn, did depose
and say that he or she resides at ; that he or she is of , one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
------------------------
Notary Public
SEAL
110
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below principal amount of the above captioned Debt Securities held by you for
our account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code, as amended, and the Treasury regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Debt Securities is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) this is to further certify that
such financial institution has not acquired the Debt Securities for the purpose
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the beneficial
interest in the temporary global Debt Securities held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
111
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: , 2000
------------------------ -
[To be dated no earlier than the
10th day before the Exchange Date]
By:
---------------------------
As, or as agent for, the
beneficial
owner(s) of the
portion of the
temporary global
Note to which this
certificate relates.
112
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof,
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Code, and the Treasury
regulations thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Debt Securities for the
purpose of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be
113
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated : , 19
------------------------ --
[To be dated no earlier than the
Exchange Date]
By:
------------------------
[▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [CEDEL, S.A.]
114
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 200
---- -- -
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
ss.310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.8, 6.10
(c) Not Applicable
ss.311 (a) 6.13(a)
(b) 6.13(b)
(c) Not Applicable
ss.312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
ss.313 (a) 7.3(a)
(b) 7.3(b)
(c) 7.3(a),
7.3(c)
(d) 7.3(d)
ss.314 (a) 7.4, 12.2
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
ss.315 (a) 6.1(a),
6.1(c)
(b) 6.2, 7.3(a)(7)
(c) 6.1(b)
(d)(1) 6.1(a)
(d)(2) 6.1(c)(2)
(d)(3) 6.1(c)(3)
(e) 5.14
ss.316 (a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) Not Applicable
ss.317 (a)(1) 5.3
(a)(2) 5.4
(b) 12.4
ss.318 1.6
---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
115