Exhibit 4(a)
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▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.,
and
THE CHASE MANHATTAN BANK,
Trustee
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INDENTURE
Dated as of December 2, 1996
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Debt Securities
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▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.
Reconciliation and tie showing the location in the Indenture dated as of
December 2, 1996 of the provisions inserted pursuant to Sections 310 to 318(a),
inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Act Section Indenture Section
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Section 310 (a)(1)...........................................................609
(a)(2)...........................................................609
(a)(3)................................................Not Applicable
(a)(4)................................................Not Applicable
(b)..............................................................608
...........................................................610(d)
(c)...................................................Not Applicable
Section 311 (a)................................................613(a) and 613(c)
(b)................................................613(b) and 613(c)
(c)...................................................Not Applicable
Section 312 (a)..............................................................701
...........................................................702(a)
(b)...........................................................702(b)
(c)...........................................................702(c)
Section 313 (a)...........................................................703(a)
(b)...........................................................703(b)
(c)................................................703(a) and 703(b)
(d)...........................................................703(d)
Section 314 (a)..............................................................704
(b)...................................................Not Applicable
(c)..............................................................102
(c)(1)...........................................................102
(c)(2)...........................................................102
(c)(3)................................................Not Applicable
(d)...................................................Not Applicable
(e)..............................................................102
Section 315 (a)...........................................................601(a)
(b)..............................................................602
........................................................703(a)(6)
(c)...........................................................601(b)
(d)...........................................................601(c)
(d)(1).....................................................601(a)(1)
(d)(2).....................................................601(c)(2)
(d)(3).....................................................601(c)(3)
(e)..............................................................514
Section 316 (a)(1)(A)................................................502 and 512
(a)(1)(B)........................................................513
(a)(2)................................................Not Applicable
(b)..............................................................508
Section 317 (a)(1)...........................................................503
(a)(2)...........................................................504
(b).............................................................1003
Section 318 (a)..............................................................107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
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PARTIES....................................................................... 1
RECITALS...................................................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.................................................... 1
Act......................................................................... 2
Affiliate................................................................... 2
Authenticating Agent........................................................ 2
Authorized Newspapers....................................................... 2
Bearer Security............................................................. 2
Board of Directors.......................................................... 2
Board Resolution............................................................ 2
Business Day................................................................ 2
CEDEL, S.A. ................................................................ 2
Certificate of a Firm of Independent Public Accountants..................... 2
Code........................................................................ 3
Commission.................................................................. 3
Company..................................................................... 3
Company Request; Company Order.............................................. 3
Component Currency.......................................................... 3
Consolidated Net Tangible Assets............................................ 3
Conversion Date............................................................. 3
Conversion Event............................................................ 3
Corporate Trust Office...................................................... 3
corporation................................................................. 3
coupon...................................................................... 3
Currency Determination Agent................................................ 3
Defaulted Interest.......................................................... 3
Depositary.................................................................. 4
Discounted Security......................................................... 4
Dollar Equivalent of the Currency Unit...................................... 4
Dollar Equivalent of the Foreign Currency................................... 4
Dollars..................................................................... 4
ECU......................................................................... 4
Election Date............................................................... 4
Euro-clear.................................................................. 4
European Communities........................................................ 4
European Monetary System.................................................... 4
Event of Default............................................................ 4
Exchange Date............................................................... 4
Exchange Rate Officers' Certificate......................................... 4
Foreign Currency............................................................ 4
Global Exchange Agent....................................................... 4
Government Obligations...................................................... 4
Holder...................................................................... 5
ii
Indenture................................................................... 5
interest.................................................................... 5
Interest Payment Date....................................................... 5
Market Exchange Rate........................................................ 5
Maturity.................................................................... 6
Officers' Certificate....................................................... 6
Opinion of Counsel.......................................................... 6
Outstanding................................................................. 6
Paying Agent................................................................ 7
Person...................................................................... 7
Place of Payment............................................................ 7
Predecessor Security........................................................ 7
Redemption Date............................................................. 7
Redemption Price............................................................ 7
Registered Security......................................................... 7
Regular Record Date......................................................... 7
Responsible Officer......................................................... 7
Securities.................................................................. 7
Security Register; Security Registrar....................................... 7
series...................................................................... 7
Special Record Date......................................................... 7
Specified Amount............................................................ 8
Stated Maturity............................................................. 8
Stock Exchange.............................................................. 8
Subsidiary.................................................................. 8
Trustee..................................................................... 8
Trust Indenture Act......................................................... ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇............................................................... ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Alien......................................................... 8
Valuation Date.............................................................. 8
Yield to Maturity........................................................... 8
SECTION 102. Compliance Certificates and Opinions........................... 8
SECTION 103. Form of Documents Delivered to Trustee......................... 9
SECTION 104. Acts of Holders................................................ 9
SECTION 105. Notices, Etc., to Trustee and Company......................... 10
SECTION 106. Notice to Holders; Waiver..................................... 11
SECTION 107. Conflict with Trust Indenture Act............................. 11
SECTION 108. Effect of Headings and Table of Contents...................... 11
SECTION 109. Successors and Assigns........................................ 12
SECTION 110. Separability Clause........................................... 12
SECTION 111. Benefits of Indenture......................................... 12
SECTION 112. Governing Law................................................. 12
SECTION 113. Non-Business Day.............................................. 12
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors........................................ 12
SECTION 115. Certain Matters Relating to Currencies........................ 13
SECTION 116. Language of Notices, Etc...................................... 13
iii
ARTICLE TWO
Security Forms
SECTION 201. Forms of Securities........................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication............... 14
SECTION 203. Securities in Global Form..................................... 14
ARTICLE THREE
The Securities
SECTION 301. Title; Payment and Terms...................................... 15
SECTION 302. Denominations and Currencies.................................. 17
SECTION 303. Execution, Authentication, Delivery and Dating................ 17
SECTION 304. Temporary Securities and Exchange of Securities............... 18
SECTION 305. Registration, Registration of Transfer and
Exchange...................................................... 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities and Coupons........................................ 24
SECTION 307. Payment of Interest; Interest Rights Preserved................ 24
SECTION 308. Persons Deemed Owners......................................... 26
SECTION 309. Cancellation.................................................. 26
SECTION 310. Computation of Interest....................................... 27
SECTION 311. Currency and Manner of payments in Respect of
Securities.................................................... 27
SECTION 312. Appointment and Resignation of Successor
Currency Determination Agent.................................. 29
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Securities of any Series........ 30
SECTION 402. Application of Trust Money.................................... 32
SECTION 403. Satisfaction and Discharge of Indenture....................... 32
SECTION 404. Reinstatement................................................. 33
ARTICLE FIVE
Remedies
SECTION 501. Events of Default............................................. 33
SECTION 502. Acceleration of Maturity; Rescission and
Annulment..................................................... 34
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................ 35
SECTION 504. Trustee May File Proofs of Claim.............................. 36
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons...................................... 36
SECTION 506. Application of Money Collected................................ 37
SECTION 507. Limitation on Suits........................................... 37
SECTION 508. Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.................... 37
SECTION 509. Restoration of Rights and Remedies............................ 38
SECTION 510. Rights and Remedies Cumulative................................ 38
SECTION 511. Delay or Omission Not Waiver.................................. 38
iv
SECTION 512. Control by Holders............................................ 38
SECTION 513. Waiver of Past Defaults....................................... 39
SECTION 514. Undertaking for Costs......................................... 39
SECTION 515. Waiver of Stay or Extension Laws.............................. 39
SECTION 516. Judgment Currency............................................. 39
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities........................... 40
SECTION 602. Notice of Defaults............................................ 41
SECTION 603. Certain Rights of Trustee..................................... 41
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.................................................... 42
SECTION 605. May Hold Securities........................................... 42
SECTION 606. Money Held in Trust........................................... 42
SECTION 607. Compensation and Reimbursement................................ 43
SECTION 608. Disqualification; Conflicting Interests....................... 43
SECTION 609. Corporate Trustee Required; Different Trustees
for Different Series; Eligibility............................. 43
SECTION 610. Resignation and Removal; Appointment of
Successor..................................................... 44
SECTION 611. Acceptance of Appointment by Successor........................ 45
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business........................................ 46
SECTION 613. Preferential Collection of Claims Against
Company....................................................... 46
SECTION 614. Authenticating Agents......................................... 49
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..... 50
SECTION 702. Preservation of Information; Communications to Holders........ 50
SECTION 703. Reports by Trustee............................................ 51
SECTION 704. Reports by Company............................................ 53
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.......... 53
SECTION 802. Successor Corporation Substituted............................. 54
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders........... 54
SECTION 902. Supplemental Indentures With Consent of Holders.............. 55
SECTION 903. Execution of Supplemental Indentures......................... 56
SECTION 904. Effect of Supplemental Indentures............................ 56
SECTION 905. Conformity With Trust Indenture Act.......................... 57
v
SECTION 906. Reference in Securities to Supplemental Indentures............ 57
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal (and Premium, if any) and
Interest, if any.............................................. 57
SECTION 1002. Maintenance of Office or Agency............................... 57
SECTION 1003. Money for Securities Payments To Be Held in Trust............. 58
SECTION 1004. Payment of Taxes and Other Claims............................. 60
SECTION 1005. Statements as to Compliance................................... 60
SECTION 1006. Corporate Existence........................................... 60
SECTION 1007. Limitations on Liens.......................................... 60
SECTION 1008. Sale and Leaseback Transactions............................... 61
SECTION 1009. Waiver of Certain Covenants................................... 62
SECTION 1010. Defeasance of Certain Obligations............................. 62
SECTION 1011. Payment of Additional Amounts................................. 63
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of This Article................................. 65
SECTION 1102. Election to Redeem; Notice to Trustee......................... 66
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............. 66
SECTION 1104. Notice of Redemption.......................................... 66
SECTION 1105. Deposit of Redemption Price................................... 67
SECTION 1106. Securities Payable on Redemption Date......................... 67
SECTION 1107. Securities Redeemed in Part................................... 68
SECTION 1108. Tax Redemption; Special Tax Redemption....................... 68
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of This Article................................. 70
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities......... 71
SECTION 1203. Redemption of Securities for Sinking Fund..................... 71
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called..................... 71
SECTION 1302. Call, Notice and Place of Meetings............................ 71
SECTION 1303. Persons Entitled to Vote at Meetings.......................... 72
SECTION 1304. Quorum; Action................................................ 72
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings....................................... 73
SECTION 1306. Counting Votes and Recording Action of Meetings............... 73
vi
EXHIBIT A. Form of Certificate To Be Delivered to Euro-clear or CEDEL, S.A. by
a Beneficial Owner of Securities, in Order to Receive a
Definitive Bearer Security in Exchange for an Interest in a
Temporary Global Security or to Exchange an Interest in a
Temporary Global Security for an Interest in a Permanent
Global Security.
EXHIBIT B. Form of Certificate To Be Given to the Appropriate Trustee by Euro-
clear or CEDEL, S.A. Regarding the Exchange of a Temporary
Global Security for Definitive Securities or for a Portion
of a Permanent Global Security.
EXHIBIT C. Form of Certificate To Be Delivered to Euro-clear or CEDEL, S.A. by
a Beneficial Owner of Securities, in Order to Receive
Payment on a Temporary Global Security.
EXHIBIT D. Form of Certificate To Be Given to the Appropriate Trustee by Euro-
clear or CEDEL, S.A. Regarding Payment on a Temporary Global
Security.
This is an INDENTURE dated as of December 2, 1996, between ▇▇▇▇▇▇ ▇▇▇▇▇▇
Companies Inc., a corporation duly incorporated and existing under the laws of
Virginia and having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
(hereinafter called the "Company"), and The Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York, as Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes securities (hereinafter called the "Securities") evidencing its
unsecured indebtedness and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to have such titles, to bear such rates of
interest, to mature at such time or times and to have such other provisions as
shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company proposes
to do all things necessary to make the Securities, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder,
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 in the United States, and the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States at the date or time of such computation; and
2
(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 Three and Article Six, are
defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Securities on behalf of the Trustee for the Securities of any series
pursuant to Section 614.
"Authorized Newspapers" means a newspaper customarily published at least
once a day for at least five days in each calendar week and of general
circulation in New York City and in London and, so long as the Securities are
listed on the Stock Exchange and the Stock Exchange shall so require, in
Luxembourg or, if it shall be impracticable in the opinion of the Trustee for
the Securities of the appropriate series to make such publication, in another
capital city in Western Europe. Such publication (which may be in different
newspapers) is expected to be made in the Eastern edition of The Wall Street
Journal, in the London edition of the Financial Times and in the Luxemburger
Wort.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means (1) 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, or (2) a certificate signed by the director or directors or
officer or officers to whom the Board of Directors shall have duly delegated its
authority, and delivered to the Trustee for the Securities of any series.
"Business Day", when used with respect to any particular Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close, and shall otherwise mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions, at the
place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"CEDEL, S.A." means Centrale de Livraison de Valeurs Mobilieres, S.A.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any other obliger upon
the Securities of any series or in any affiliate of the Company or of such other
obliger, and (3) is not connected with the Company or such other obliger or any
affiliate of the Company or of such other obliger, as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions,
3
but such firm may be the regular auditors employed by the Company. Whenever it
is herein provided that any Certificate of a Firm of Independent Public
Accountants shall be furnished to the Trustee for Securities of any series, such
Certificate shall state that the signer has read this definition and that the
signer is independent within the meaning hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, 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.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, the President 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, or (2) by any two
Persons designated in a Company Order previously delivered to the Trustee for
Securities of any series by any two of the foregoing officers and delivered to
the Trustee for Securities of any series.
"Component Currency" has the meaning specified in Section 311(h).
"Consolidated Net Tangible Assets" means the excess over current liabili-
ties of all assets properly appearing on a consolidated balance sheet of the
Company and its consolidated Subsidiaries less goodwill, trademarks, patents,
other like intangibles and the minority interests of others in Subsidiaries.
"Conversion Date" has the meaning specified in Section 311(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency by
the government of the country which issued such currency and for the settlement
of transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU 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
for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee for Securities of
any series at which at any particular time its corporate trust business shall be
principally administered, which office of The Chase Manhattan Bank, at the date
of the execution of this Indenture, is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Determination Agent", with respect to Securities of any series,
means a New York Clearing House bank designated pursuant to Section 301 or
Section 312.
"Defaulted Interest" has the meaning specified in Section 307.
4
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a global Security, the Person designated as Depositary
by the Company pursuant to Section 301 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest thereon) less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 311(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 311(f).
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time.
"Election Date" has the meaning specified in Section 311(h).
"Euro-clear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euro-clear system.
"European Communities" means the entity that resulted from the merger of
the European 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 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Officers' Certificate" means a certificate or facsimile
thereof setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar, Foreign Currency or currency unit amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate, signed by
the Treasurer, any Vice President or any Assistant Treasurer of the Company.
"Foreign Currency" means a currency issued and actively maintained as a
country's or countries' recognized unit of domestic exchange by the government
of any country other than the United States.
"Global Exchange Agent" has the meaning specified in Section 304.
"Government Obligations" means securities which are (i) direct obligations
of the government which issued the currency in which the Securities of a
particular series are payable (except as provided in Sections 311(b), 311(d)
5
and 311(e), in which case with respect to Securities for which an election has
occurred pursuant to Section 311(b), or a Conversion Event has occurred as
provided in Sections 311(d) and 311(e), such obligations shall be issued in the
currency or currency unit in which such Securities are payable as a result of
such election or Conversion Event) or (ii) obligations of a Person controlled or
supervised by or acting as an agency or instrumentality of the government which
issued the currency in which the Securities of such series are payable (except
as provided in Sections 311(b), 311(d) and 311(e), in which case with respect to
Securities for which an election has occurred pursuant to Section 311(b), or a
Conversion Event has occurred as provided in Sections 311(d) and 311(e), such
obligations shall be issued in the currency or currency unit in which such
Securities are payable as a result of such election or Conversion Event), the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such currency and are not callable or redeemable at the option of the issuer
thereof.
"Holder", when used with respect to any Security, means in the case of a
Registered Security the Person in whose name a Security is registered in the
Security Register, and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means any bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
a particular series of Securities established as contemplated by Section 301.
"interest", when used with respect to a Discounted Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such 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 301 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 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 each case
determined by the Currency Determination Agent. 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 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 shall deem appropriate. Unless otherwise specified
by the Currency Determination Agent, if there is more than one market for
dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be 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. For
purposes of this definition, a "nonresident issuer" shall mean an issuer that is
not a resident of the country or countries that issue such currency or whose
currencies are included in such currency unit.
6
"Maturity", when used with respect to any Security, means the date on
which the principal of that Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, the President
or a Vice President (any reference to a Vice President of the Company herein
shall be deemed to include any Vice President of the Company whether or not
designated by a number or a word or words added before or after the title "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 for the Securities of any series.
"Opinion of Counsel" means, for purposes of Section 1108, a written
opinion of independent legal counsel of recognized standing and, for all other
purposes hereof, means a written opinion of counsel, who may be an employee of
or counsel to the Company or may be other counsel satisfactory to the Trustee
for the Securities of any series.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such
Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption
money in the necessary amount and in the required currency or currency
unit has been theretofore deposited with the Trustee for such Securities
or any Paying Agent (other than the Company or any other obligor upon the
Securities) in trust or set aside and segregated in trust by the Company
or any other obligor upon the Securities (if the Company or any other
obligor upon the Securities shall act as its own Paying Agent) for the
Holders of such Securities; provided, however, that, if such Securities or
portions thereof are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture, or provision therefor satisfactory
to such Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented proof satisfactory to
the Trustee for such Securities that any such Securities are held by bona
fide holders in due course;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee for such Securities
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which such Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of such Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor and
(b) the principal amount of a Discounted Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration pursuant to Section 502.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series are
payable, as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by that
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a mutilated, destroyed,
lost or stolen Security or a Security to which a mutilated, destroyed, lost or
stolen coupon appertains shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be redeemed
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means an amount, in the currency or currency unit in which such Security is
denominated or which is otherwise provided for pursuant hereto, equal to the
principal amount thereof (and premium, if any, thereon) together with accrued
interest, if any, to the Redemption Date.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series, means the date, if any,
specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee for any
series of Securities, means the chairman or vice chairman of the board of
directors, the chairman or vice chairman of the executive committee of the board
of directors, the president, any vice president (whether or not designated by a
number or a word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of such Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" means securities evidencing unsecured indebtedness of the
Company authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
A "series" of Securities means all Securities denoted as part of the same
series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee for such
series pursuant to Section 307.
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"Specified Amount" has the meaning specified in Section 311(h).
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security or a coupon representing such instalment of interest as the fixed
date on which the principal of such Security or such instalment of principal or
interest is due and payable.
"Stock Exchange", unless specified otherwise with respect to any
particular series of Securities, means the Luxembourg Stock Exchange.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument and, subject to the provisions of Article Six hereof, shall
also include its successors and assigns as Trustee hereunder. If there shall be
at one time more than one Trustee hereunder, "Trustee" shall mean each such
Trustee and shall apply to each such Trustee only with respect to those series
of Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which this
instrument was executed, except as provided in Section 905.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, possessions and other areas
subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"United States Alien" has the meaning specified in Section 1011.
"Valuation Date" has the meaning specified in Section 311(c).
"Yield to Maturity", when used with respect to any Discounted Security,
means the yield to maturity, if any, set forth on the face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any
series of Securities to take any action under any provision of this Indenture,
the Company shall furnish to such Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section
1005) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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;
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(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 condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of such
series may, alternatively, be embodied in and evidenced by the record of Holders
of Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
for the appropriate series of Securities and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee for the appropriate series of
Securities and the Company and any agent of such Trustee or the Company, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1306.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation
or association or a member of a partnership, or an official of a public or
governmental body, on behalf of such corporation, association, partnership
or public or governmental body or by a fiduciary, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee for the
appropriate series of Securities deems sufficient.
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(e) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee for
such Securities to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to
it, the Bearer Securities therein described; or such facts may be proved
by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by such Trustee to
be satisfactory. The Trustee for such Securities and the Company may
assume that such ownership of any Bearer Security continues until (1)
another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (2) such Bearer Security is produced
to such Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer
Security is no longer Outstanding. The principal amount and serial numbers
of Bearer Securities held by any Person, and the date of holding the same,
may also be proved in any other manner which the Company and the Trustee
for such Securities deem sufficient.
(f) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture,
the principal amount of a Discounted Security that may be counted in
making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 at the time the taking of such
action by the Holders of such requisite principal amount is evidenced to
the Trustee for such Securities.
(g) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done
by the Trustee for such Securities, the Security Registrar, any Paying
Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate
Trust Office, Attention: Corporate Trustee Administration Department, or
11
(2) the Company by such Trustee or by any Holder shall be sufficient for
every purpose hereunder (except as provided in paragraphs (3), (4) and
(5) of Section 501) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to such Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders of Registered Securities if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given (unless otherwise herein expressly
provided) to Holders of Bearer Securities who have filed their names and
addresses with the Trustee for such purpose within the previous two years if in
writing and mailed, first class postage prepaid, to each such Holder at his
address as so filed not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice, or to all other Holders
of Bearer Securities if published in an Authorized Newspaper on a Business Day
at least twice, the first such publication to be not earlier than the earliest
date, and the second such publication to be not later than the latest date,
prescribed herein for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed in the manner prescribed by this
Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee for such Securities shall constitute a
sufficient notification for every purpose hereunder.
In case by reason of the suspension of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to publish
any notice to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be made with the approval
of the Trustee for such Securities shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
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 for such
Securities, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In any case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons appertaining
thereto, expressed or implied, shall give to any Person, other than the parties
hereto, any Paying Agent, any Security Registrar and their successors hereunder
and the Holders of Securities or coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in accordance with the laws
of the State of New York.
SECTION 113. Non-Business Day.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Security of any particular series shall not be a Business Day at
any Place of Payment with respect to Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons) payment of principal of (and premium, if any) and interest, if any,
with respect to such Security need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 114. Immunity of Incorporators, Stockholders, Officers and Directors.
No recourse shall be had for the payment of the principal of (and premium, if
any), or the interest, if any, on any Security or coupon of any series, or for
any claim based thereon, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or indirectly through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment of penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities and coupons of each series are solely
corporate obligations, and that no personal liability whatever shall attach to,
or is incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any successor corporation, either
directly or indirectly through the Company or any successor corporation, because
of the incurring of the indebtedness hereby authorized or under or by reason of
any of the obligations, covenants or agreements contained in this Indenture or
in any of the Securities or coupons of any series, or to be implied herefrom or
therefrom; and that all such personal liability is hereby expressly released and
waived as a condition of, and as part of the consideration for, the execution of
this Indenture and the issuance of the Securities and coupons of each series.
13
SECTION 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit in
any Security, or in the Board Resolution or supplemental indenture relating
thereto, shall mean only the referenced currency or currency unit and no other
currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee in
one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units, notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of
Securities denominated in different currencies or currency units, then for
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a foreign
currency or currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for such series in an Officers' Certificate
for such Foreign Currency or currency unit into Dollars as of the date the
taking of such action or Act by the Holders of the requisite percentage in
principal amount of the Securities is evidenced to such Trustee.
SECTION 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language, and
any published notice may also be in an official language of the country of
publication.
ARTICLE TWO
Security Forms
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities,
if any, of each series and related coupons shall be in such form or forms
(including global form) as shall be established by or pursuant to a Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any law, with any rule or regulation
made pursuant thereto, with any rules of any securities exchange or to conform
to usage, as may, consistently herewith, be determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons. If temporary Securities of any series are issued in global form as
permitted by Section 304, the form thereof shall be established as provided in
the preceding sentence.
Unless otherwise specified as contemplated by Section 301, Bearer Securities
shall have interest coupons attached.
Prior to the delivery of a Security of any series in any such form to the
Trustee for the Securities of such series for authentication, the Company shall
deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Security has
been approved;
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(2) An Officers' Certificate dated the date such Certificate is delivered
to such Trustee stating that all conditions precedent provided for in this
Indenture relating to the authentication and delivery of Securities in such
form have been complied with; and
(3) An Opinion of Counsel stating that Securities in such form, together
with any coupons appertaining thereto, when (a) completed by appropriate
insertions and executed and delivered by the Company to such Trustee for
authentication in accordance with this Indenture, (b) authenticated and
delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time
by the Board of Directors, and (c) sold in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company, subject to the effects of applicable bankruptcy, reorganization,
fraudulent conveyance, moratorium, insolvency and other similar laws
generally affecting creditors' rights, to general equitable principles and to
such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities.
The definitive Securities and coupons, if any, shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Securities shall be in substantially
the following form:
"This is one of the Securities of the series designated therein described
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------------------
Authorized Officer"
SECTION 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Security. Any instructions by the Company with
respect to a Security in global form, after its initial issuance, shall be in
writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
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ARTICLE THREE
The Securities
SECTION 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered and Outstanding under this Indenture is unlimited. The Securities may
be issued up to the aggregate principal amount of Securities from time to time
authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series, each of which shall be
issued pursuant to a Board Resolution. With respect to any particular series of
Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Securities of that series (which shall distinguish
the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of that
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether Securities of that series are to be issuable as Registered
Securities, Bearer Securities or both;
(4) the date or dates (or manner of determining the same) on which the
principal of the Securities of that series is payable (which, if so provided
in such Board Resolution, may be determined by the Company from time to time
and set forth in the Securities of the series issued from time to time);
(5) the rate or rates (or the manner of calculation thereof) at which the
Securities of that series shall bear interest (if any), the date or dates
from which such interest shall accrue (which, in either case or both, if so
provided in such Board Resolution, may be determined by the Company from time
to time and set forth in the Securities of the series issued from time to
time), the Interest Payment Dates on which such interest shall be payable (or
manner of determining the same) and the Regular Record Date for the interest
payable on any Registered Securities on any Interest Payment Date and the
extent to which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 307;
(6) the place or places where, subject to the provisions of Section 1002,
the principal of (and premium, if any) and interest, if any, on Securities of
that series shall be payable, any Registered Securities of that series may be
surrendered for registration of transfer, any Securities of that series may
be surrendered for exchange, and notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served;
(7) the period or periods within which, the price or prices at which, the
currency or currency unit in which, and the terms and conditions upon which
Securities of that series may be redeemed, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods
within
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which, the price or prices at which, the currency or currency unit in which,
and the terms and conditions upon which, Securities of that series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall be
issuable is Dollars, the denominations in which any Registered Securities of
that series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of that series shall be issuable, if other than the denomination
of $5,000;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) any Events of Default and covenants of the Company with respect to
the Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(12) if a Person other than The Chase Manhattan Bank is to act as Trustee
for the Securities of that series, the name and location of the Corporate
Trust Office of such Trustee;
(13) if other than Dollars, the currency or currency unit in which payment
of the principal of (and premium, if any) or interest, if any, on the
Securities of that series shall be made or in which the Securities of that
series shall be denominated and the particular provisions applicable thereto
in accordance with, in addition to or in lieu of the provisions of Section
311;
(14) if the principal of (and premium, if any) and interest, if any, on
the Securities of that series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currency unit other than that
in which such Securities are denominated or stated to be payable, in
accordance with provisions in addition to or in lieu of, or in accordance
with the provisions of, Section 311, the period or periods within which
(including the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange
rate between the currency or currency unit in which such Securities are
denominated or stated to be payable and the currency or currency unit in
which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if any;
(16) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of that series may be determined with
reference to an index based on a currency or currency unit other than that in
which such Securities are denominated or stated to be payable or any other
index, the manner in which such amounts shall be determined;
(17) if the Securities may be converted into or exchanged for other
securities for money borrowed of the Company, the terms and conditions
thereof;
(18) if the Securities of that series do not bear interest, the applicable
dates for purposes of Section 701;
(19) if other than as set forth in Section 401, provisions for the
satisfaction and discharge of this Indenture with respect to the Securities
of that series;
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(20) the date as of which any Bearer Securities of that series and any
global Security representing Outstanding Securities of that series shall be
dated if other than the date of original issuance of the first Security of
that series to be issued;
(21) the application, if any, of Section 1010 and Section 1011 to the
Securities of that series;
(22) whether the Securities of the series shall be issued in whole or in
part in the form of a global Security or Securities and, in such case, the
Depositary and Global Exchange Agent, if any, for such global Security or
Securities, whether such global form shall be permanent or temporary and, if
applicable, the Exchange Date;
(23) if Securities of the series are to be issuable initially in the form
of a temporary global Security, the circumstances under which the temporary
global Security can be exchanged for definitive Securities and whether the
definitive Securities will be Registered Securities and/or Bearer Securities
and will be in global form and whether interest in respect of any portion of
such global Security payable in respect of an Interest Payment Date prior to
the Exchange Date shall be paid to any clearing organization with respect to
a portion of such global 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 if other than as provided in this Article Three; and
(24) any other terms of that series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any particular series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, and except as may otherwise be provided in or
pursuant to such Board Resolution relating thereto. The terms of such
Securities, as set forth above, may be determined by the Company from time to
time if so provided in or established pursuant to the authority granted in a
Board Resolution. All 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 Securities of such series.
SECTION 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as
contemplated by Section 301, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof, and any
Bearer Securities of a series shall be issuable in the denomination of $5,000,
and Registered and Bearer Securities shall be payable in Dollars.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the
Company by its Chairman of the Board, a Vice Chairman of the Board, or its
President or one of its Vice Presidents. The Securities shall be so executed
under the corporate seal of the Company reproduced thereon and attested to by
its Secretary or any one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
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 Securities or
did not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Company to the Trustee for the
Securities of such series for authentication, together with a Company Order for
the authentication and delivery of such Securities, and such Trustee, in
accordance with the Company Order, shall authenticate and deliver such
Securities; provided, however, that, 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 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
Trustee for the Securities of such series a certificate substantially in the
form set forth in Exhibit A to this Indenture. If any Security shall be
represented by a permanent global Security, then, for purposes of this Section
and Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection with the original
issuance of such beneficial owner's interest in such permanent global Security.
Except as permitted by Section 306 or 307, the Trustee for the Securities of a
series shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured other than matured coupons in
default have been detached and cancelled. If all the Securities of any one
series are not to be issued at one time and if a Board Resolution relating to
such Securities shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities, including,
without limitation, procedures with respect to interest rate, Stated Maturity,
date of issuance and date from which interest, if any, shall accrue.
Notwithstanding any contrary provision herein, if all Securities of a series
are not to be originally issued at one time, it shall not be necessary to
deliver the Board Resolution, Officers' Certificate and Opinion of Counsel
otherwise required pursuant to Sections 102 and 201 at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and,
unless otherwise specified as contemplated by Section 301, each Bearer Security
shall be dated as of the date of original issuance of the first Security of such
series to be issued.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein manually executed by the Trustee for such Security or
on its behalf pursuant to Section 614, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
Each Depositary designated pursuant to Section 301 for a global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
SECTION 304. Temporary Securities and Exchange of Securities.
Pending the preparation of definitive Securities of any particular series,
the Company may execute, and upon Company Order the Trustee for the Securities
of such series shall authenticate and deliver, in the manner specified in
Section 303, temporary Securities which are printed, lithographed, typewritten,
photocopied or otherwise produced, in any denomination, with like terms and
conditions as the definitive Securities of like series in lieu of which they are
issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. Any such
temporary Securities may be in global form, representing such of the Outstanding
Securities of such series as shall be specified therein.
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Except in the case of temporary Securities in global form (which shall be
exchanged only in accordance with the provisions of the following paragraphs),
if temporary Securities of any particular series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities of such series shall be exchangeable for such definitive Securities
and of a like Stated Maturity and with like terms and provisions upon surrender
of the temporary Securities of such series, together with all unmatured and
matured coupons in default, if any, at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any particular
series, the Company shall execute and (in accordance with a Company Order
delivered at or prior to the authentication of the first definitive Security of
such series) the Trustee for the Securities of such series or the Global
Exchange Agent shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations of the
same series and of a like Stated Maturity and with like terms and provisions;
provided, however, unless otherwise specified pursuant to Section 301, no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until exchanged as
hereinabove provided, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and with like terms and conditions, except as to
payment of interest, if any, authenticated and delivered hereunder.
Any temporary global Security and any permanent global Security shall, unless
otherwise provided therein, be delivered to a Depositary designated pursuant to
Section 301.
Without unnecessary delay but in any event not later than the date specified
in or determined pursuant to the terms of any such temporary global Security
(the "Exchange Date"), the Securities represented by any temporary global
Security of a series of Securities issuable in bearer form may be exchanged for
definitive Securities (subject to the second succeeding paragraph) or Securities
to be represented thereafter by one or more permanent global Securities, without
interest coupons. On or after the Exchange Date such temporary global Security
shall be surrendered by the Depositary to the Trustee for such Security, as the
Company's agent for such purpose, or the agent appointed by the Company pursuant
to Section 301 to effect the exchange of the temporary global Security for
definitive Securities (the "Global Exchange Agent"), and following such
surrender, such Trustee or the Global Exchange Agent (as authorized by the
Trustee as an Authenticating Agent pursuant to Section 614) shall (1) endorse
the temporary global Security to reflect the reduction of its principal amount
by an equal aggregate principal amount of such Security, (2) endorse the
applicable permanent global Security, if any, to reflect the initial amount, or
an increase in the amount of Securities represented thereby, (3) manually
authenticate such definitive Securities or such permanent global Security, as
the case may be, (4) subject to Section 303, deliver such definitive Securities
to the Holder thereof or, as the case may be, deliver such permanent global
Security to the Depositary to be held outside the United States for the accounts
of Euro-clear and CEDEL, S.A., for credit to the respective accounts at Euro-
clear and CEDEL, S.A., designated by or on behalf of the beneficial owners of
such Securities (or to such other accounts as they may direct) and (5) redeliver
such temporary global Security to the Depositary, unless such temporary global
Security shall have been cancelled in accordance with Section 309 hereof;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Depositary, such temporary global
Security shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euro-clear as to the portion of such temporary
global Security held for its account then to be exchanged for definitive
Securities or one or more permanent global Securities, as the case may be, and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL,
S.A., as to the portion of such temporary global Security held for its account
then to be exchanged for definitive Securities or one or more permanent global
Securities, as the case may be, each substantially in the form set forth in
Exhibit B to this Indenture. Each certificate substantially in the form of
Exhibit B hereto of Euro-clear or CEDEL, S.A., as the case may be, shall be
based on certificates of the account holders listed in the records of Euro-clear
or CEDEL, S.A., as the case may be, as being entitled to all or any portion of
the applicable temporary global Security. An account holder of
20
Euro-clear or CEDEL, S.A., as the case may be, desiring to effect the exchange
of interest in a temporary global Security for an interest in definitive
Securities or one or more permanent global Securities shall instruct Euro-clear
or CEDEL, S.A., as the case may be, to request such exchange on its behalf and
shall deliver to Euro-clear or CEDEL, S.A., as the case may be, a certificate
substantially in the form of Exhibit A hereto and dated no earlier than 15 days
prior to the Exchange Date. Until so exchanged, temporary global Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities and permanent global Securities of the same series
authenticated and delivered hereunder, except as provided in the fourth
succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or
the Global Exchange Agent by Euro-clear or CEDEL, S.A. of any certificate
substantially in the form of Exhibit B hereto may be relied upon by the Company
and such Trustee or the Global Exchange Agent as conclusive evidence that a
corresponding certificate or certificates has or have been delivered to Euro-
clear or to CEDEL, S.A., 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
for the Securities of the appropriate series or the Global Exchange Agent
definitive Securities in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. At any time,
on or after the Exchange Date, upon 30 days' notice to the Trustee for the
Securities of the appropriate series or the Global Exchange Agent by Euro-clear
or CEDEL, S.A., as the case may be, acting at the request of or on behalf of the
beneficial owner, a Security represented by a temporary global Security or a
permanent global Security, as the case may be, may be exchanged, in whole or
from time to time in part, for definitive Securities without charge and such
Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange
for each portion of such temporary global Security or such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and with like terms and provisions as
the portion of such temporary global Security or such permanent global Security
to be exchanged, which, unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, as contemplated by
Section 301, 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 Security or the permanent
global Security only in compliance with the requirements of the second preceding
paragraph. On or prior to the thirtieth day following receipt by the Trustee for
the Securities of the appropriate series or the Global Exchange Agent of such
notice with respect to a Security, or, if such day is not a Business Day, the
next succeeding Business Day, the temporary global Security or the permanent
global Security, as the case may be, shall be surrendered by the Depositary to
such Trustee, as the Company's agent for such purpose, or the Global Exchange
Agent to be exchanged in whole, or from time to time in part, for definitive
Securities without charge following such surrender, upon the request of Euro-
clear or CEDEL, S.A., as the case may be, and such Trustee or the Global
Exchange Agent shall (1) endorse the applicable temporary global Security or the
permanent global Security to reflect the reduction of its principal amount by
the aggregate principal amount of such Security, (2) in accordance with
procedures acceptable to the Trustee cause the terms of such Security and
coupons, if any, to be entered on a definitive Security, (3) manually
authenticate such definitive Security and (4) if a Bearer Security is to be
delivered, deliver such definitive Security outside the United States to Euro-
clear or CEDEL, S.A., as the case may be, for or on behalf of the beneficial
owner thereof, in exchange for a portion of such permanent global Security.
Unless otherwise specified in such temporary global Security or permanent
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security or permanent global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL, S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security or a
permanent global Security shall be delivered only outside the United States.
21
Until exchanged in full as hereinabove provided, any temporary global
Security or permanent global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series
and with like terms and conditions, except as to payment of interest, if any,
authenticated and delivered hereunder. Unless otherwise specified as
contemplated by Section 301, interest payable on such temporary global Security
on an Interest Payment Date for Securities of such series shall be payable to
Euro-clear and CEDEL, S.A. on such Interest Payment Date upon delivery by Euro-
clear and CEDEL, S.A. to the Trustee for the Securities of the appropriate
series or the Global Exchange Agent in the case of payment of interest on a
temporary global Security with respect to an Interest Payment Date occurring
prior to the applicable Exchange Date of a certificate or certificates
substantially in the form set forth in Exhibit C 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 global
Security on such Interest Payment Date and who have, in the case of payment of
interest on a temporary global Security with respect to an Interest Payment Date
occurring prior to the applicable Exchange Date, each delivered to Euro-clear or
CEDEL, S.A., as the case may be, a certificate substantially in the form set
forth in Exhibit D to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee for
the Securities of the appropriate series or the Global Exchange Agent in
exchange for a portion of a temporary global Security or a permanent global
Security shall not bear a coupon for any interest which shall theretofore have
been duly paid by such Trustee to Euro-clear or CEDEL, S.A. or by the Company to
such Trustee in accordance with the provisions of this Section 304.
With respect to Exhibits A, B, C and D to this Indenture, the Company may, in
its discretion and if required or desirable under applicable law, 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.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee for the Securities of each series a register (the register maintained in
such office being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of
Registered Securities. The Trustee for the Securities of each series is hereby
initially appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities of such series as
herein provided.
Upon surrender for registration of transfer of any Registered Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Securities
of each series shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Registered Securities
of any particular series may be exchanged for other Registered Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Registered Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee for such Securities shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. Except as
otherwise specified pursuant to Section 301, Registered Securities may not be
exchanged for Bearer Securities.
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Notwithstanding any other provision of this Section or Section 304, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a global Security representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
At the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and with like terms and provisions upon
surrender of the Bearer Securities to be exchanged at any office or agency of
the Company in a Place of Payment for that series, with all unmatured coupons
and all matured coupons in default thereto appertaining. 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
(or to the Trustee for the Security in case of matured coupons in default) 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
such Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency of the Company in a Place of Payment for that series
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 with like terms and
conditions after the close of business at such office or agency on or after (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.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee for such Securities shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities for such series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to the Securities for
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 301 shall no longer be effective with respect to the Securities for such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
global Security or Securities representing such series in exchange for such
global Security or Securities.
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
Securities shall no longer be represented by such global Security or
23
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Registered 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 Security or Securities
representing such series in exchange for such global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a series
of Securities in registered form, the Depositary for such series of Securities
may surrender a global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and 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 service charge, (i) to each Person specified
by such Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the global Security; and (ii) to such Depositary a new
global Security of like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of the surrendered global
Security and the aggregate principal amount of Securities delivered to Holders
thereof.
Upon the exchange of a global Security for Securities in definitive form,
such global Security shall be cancelled by the Trustee. Registered Securities
issued in exchange for a global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Security to the persons in whose names such
Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee for such Security)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar for such series duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1104 and ending
at the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption as a whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided,
however, that such Registered Security shall be simultaneously surrendered for
redemption.
24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee for such Security or the
Company and the Trustee for a Security receive evidence to their satisfaction of
the destruction, loss or theft of any Security or coupon and (ii) there is
delivered to the Company and such Trustee such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or such Trustee that such Security
or coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request such Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for such mutilated
Security, or in exchange for the Security to which a mutilated, destroyed, lost
or stolen coupon appertains (with all appurtenant coupons not mutilated,
destroyed, lost or stolen) a new Security of the same series and in a like
principal amount and of a like Stated Maturity and with like terms and
conditions and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to such mutilated, destroyed,
lost or stolen Security or to the Security to which such mutilated, destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security or coupon (without
surrender thereof except in the case of a mutilated Security or coupon) if the
applicant for such payment shall furnish to the Company and the Trustee for such
Security such security or indemnity as may be required by them to save each of
them harmless, and in case of destruction, loss or theft, evidence satisfactory
to the Company and such Trustee and any agent of either of them of the
destruction, loss or theft of such Security and the ownership thereof; provided,
however, that the principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
all fees and expenses of the Trustee for such Security) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security or in exchange
for any mutilated Security, or in exchange for a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its coupons, if any, or the destroyed, lost or
stolen 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 Securities of the same series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series,
payment of interest may be made at the option of the Company (i) in the case of
Registered Securities, by check mailed or delivered to the address of
25
the Person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located inside the United States, or (ii) in the case of Bearer Securities, upon
presentation and surrender of the appropriate coupon appertaining thereto or by
transfer to an account maintained by the payee with a bank located outside the
United States.
Unless otherwise provided or contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euro-clear and CEDEL, S.A. with respect to
that portion of such permanent global Security held for its account by the
Depositary. Each of Euro-clear and CEDEL, S.A. will in such circumstances
credit the interest received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Registered Securities of that series (or their
respective Predecessor Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee for
the Registered Securities of such series in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of that
series and the date of the proposed payment, and at the same time the Company
shall deposit with such Trustee an amount of money in the currency or
currency unit in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except as provided in Sections 311(b), 311(d) and 311(e)), equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to such 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 such Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall not be 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 such Trustee of the notice of
the proposed payment. Such Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Registered Securities of that series at his address as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. Such Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least once
in a newspaper published in the English language, customarily on each
Business Day and of general circulation in New York, New York, but such
publication shall not be a condition precedent to the establishment of 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 the Registered Securities of that series (or their respective
Predecessor Securities) are registered 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 of any particular series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice is given by the Company to the Trustee for
the Securities of such series of the proposed manner of payment pursuant to
this clause, such manner of payment shall be deemed practicable by such
Trustee.
26
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee for such Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, such Trustee nor any agent of the
Company or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee for such Security and any agent of the
Company or such Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Bearer Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, such Trustee nor any agent of the Company or such Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration
of transfer or exchange, or delivered in satisfaction of any sinking fund
payment, shall, if surrendered to any Person other than the Trustee for such
Securities, be delivered to such Trustee and, in the case of Registered
Securities and matured coupons, shall be promptly cancelled by it. All Bearer
Securities and unmatured coupons so delivered to the Trustee for such Securities
shall be cancelled by such Trustee. The Company may at any time deliver to the
Trustee for Securities of a series for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by such Trustee. Notwithstanding any other provision of this Indenture to the
contrary, in the case of a series, all the Securities of which are not to be
originally issued at one time, a Security of such series shall not be deemed to
have been Outstanding at any time hereunder if and to the extent that,
subsequent to the authentication and delivery thereof, such Security is
delivered to the Trustee for such Security for cancellation by the Company or
any agent thereof upon the failure of the original purchaser thereof to make
payment therefor against delivery thereof, and any Security so delivered to such
Trustee shall be promptly cancelled by it. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee for such Securities shall be disposed
of by such Trustee in accordance with its standard procedures and a certificate
of disposition evidencing such disposition of Securities and coupons shall be
provided to the Company by such Trustee. In the case of any temporary global
Security, which shall be disposed of if the entire aggregate principal amount of
the Securities represented thereby has been exchanged, the certificate of
disposition shall state that all certificates required pursuant to Section 304
hereof, substantially in the form of Exhibit B hereto (or in the form of any
substitute exhibit as provided in the last paragraph of Section 304), to be
given by Euro-clear or CEDEL, S.A., have been duly presented to the Trustee for
such Securities by Euro-clear or CEDEL, S.A., as the case may be. Permanent
global
27
Securities shall not be disposed of until exchanged in full for definitive
Securities or until payment thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any particular series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Currency and Manner of payments in Respect of Securities.
(a) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of which have not
made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the currency or
currency unit in which such Registered Security or Bearer Security, as the case
may be, is payable.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and premium,
if any) or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee for such series of Registered Securities a written
election with signature guarantees and in form and substance satisfactory to
such 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 or currency unit, such election will
remain in effect for such Holder until changed by such Holder by written notice
to the Trustee for such series of Registered Securities (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 of 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 Eleven). In the event any Holder
makes any such election pursuant to the preceding sentence, such election will
not be effective on any transferee of such Holder and such transferee shall be
paid in the currency or currency unit indicated pursuant to paragraph (a) above
unless such transferee makes an election pursuant to the preceding sentence;
provided, however, that such election, if in effect while funds are on deposit
with respect to the Securities of such series as described in Section
401(a)(1)(B) or Section 1010, will be effective on any transferee of such Holder
unless otherwise specified pursuant to Section 301 for the Securities of such
series. Any Holder of any such Registered Security who shall not have delivered
any such election to the Trustee of such series of Registered Securities not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant currency or
currency unit as provided in paragraph (a) of this Section 311. In no case may
a Holder of Securities of any series elect, or change an election, to receive
payments in any currency or currency unit as described in this Section 311(b)
following a deposit of funds with respect to the Securities of such series as
described in Section 401(a)(1)(B) or Section 1010. The Trustee for each such
series of Registered Securities shall notify the Currency Determination Agent as
soon as practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) If the election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then not later than the fourth Business Day after the
Regular Record Date or Special Record Date, as the case may be, for each payment
date for Registered Securities of any series, the Currency Determination Agent
will deliver to the Company a written notice specifying, in the currency or
currency unit in which Registered Securities of such series are payable, the
respective aggregate amounts of principal of (and premium, if any) and interest,
if any, on the Registered Securities to be made on such payment date, specifying
the amounts in such currency or currency unit so payable in respect of the
Registered Securities of such series as to which the Holders thereof shall have
elected
28
to be paid in a currency or currency unit other than that in which such series
is denominated as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officers' Certificate in
respect of the Dollar, Foreign Currency, ECU or currency unit payments to be
made on such payment date. The Dollar, Foreign Currency, ECU or currency unit
amount receivable by Holders of Registered Securities who have elected payment
in a currency or currency unit as provided in paragraph (b) above shall, unless
otherwise provided pursuant to Section 301, 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.
(d) If a Conversion Event occurs with respect to a Foreign Currency, the ECU
or any other currency unit in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to paragraph
(b) above, then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable 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 available (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 of each such series of Securities and by
such Trustee or any Paying Agent to the Holders of such 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 in the manner
provided in paragraph (f) or (g) below.
(e) If the Holder of a Registered Security denominated in any currency or
currency unit shall have elected to be paid in another currency or currency unit
as provided in paragraph (b) above, and a Conversion Event occurs with respect
to such elected currency or currency unit, such Holder shall receive payment in
the currency or currency unit in which payment would have been made in the
absence of such election. If a Conversion Event occurs with respect to the
currency or currency unit in which payment would have been made in the absence
of such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) of this Section 311.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Currency Determination Agent and shall be obtained for each subsequent
payment after the Conversion Date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent and, subject to the provisions of paragraph (h)
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.
(h) For purposes of this Section 311 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
29
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, each of whose Dollar Equivalent at the Market Exchange Rate on the
date of such replacement shall be equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market Exchange Rate
on such date divided by the number of currencies into which such Component
Currency was divided, 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 and is continuing on the applicable Valuation Date, 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 date for any series of Registered Securities
as specified pursuant to Section 301(14) by which the written election referred
to in Section 311(b) may be made, such date to be not later than the Regular
Record Date or Special Record Date, as the case may be, for the earliest payment
for which such election may be effective.
All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
currency or currency units. The Currency Determination Agent shall promptly give
written notice to the Company and the Trustee for the appropriate series of
Securities of any such decision or determination.
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 of the appropriate series of Registered Securities and Currency
Determination Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 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 Registered Securities are denominated or payable, the
Company, after learning thereof, will immediately give written notice thereof to
the Trustee of the appropriate series of Registered Securities and Currency
Determination Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 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 of the appropriate series of
Registered Securities and Currency Determination Agent.
The Trustee of the appropriate series of Registered Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Currency Determination Agent and shall not otherwise
have any duty or obligation to determine such information independently.
SECTION 312. Appointment and Resignation of Successor Currency Determination
Agent.
(a) If and so long as the Securities of any series (i) are denominated in a
currency unit or a currency other than Dollars or (ii) may be payable in a
currency unit or a currency other than Dollars, or so long as it is required
under any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, a Currency
Determination Agent. The Company will cause the Currency Determination Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified
30
pursuant to Section 301 for the purpose of determining the applicable rate of
exchange and for the purpose of converting the issued currency or currency unit
into the applicable payment currency or currency unit for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 311.
(b) No resignation of the Currency Determination Agent and no appointment of
a successor Currency Determination Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Company and the Trustee of the appropriate series of Securities accepting such
appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor
Currency Determination Agent or Currency Determination Agents with respect to
the Securities of that or those series (it being understood that any such
successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Securities of any Series.
(a) The Company shall be deemed to have satisfied and discharged the entire
indebtedness on all the Securities of any particular series and, so long as no
Event of Default shall be continuing, the Trustee for the Securities of such
series, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of such
indebtedness, when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
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 as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇) any
Securities and coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇)
coupons appertaining to Securities called for redemption and maturing after
the relevant Redemption Date, whose surrender is not required as provided in
Section 1106 and (iv) Securities 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 the last paragraph of Section 1003) have been delivered
to such Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series described
in (A) above (and, in the case of (i) or (ii) below, any coupons appertaining
thereto) not theretofore so delivered to the Trustee for the Securities of
such series for cancellation:
(i) the Company has deposited or caused to be deposited with such
Trustee as trust funds in trust an amount in the currency or currency unit
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except as provided in
31
Sections 311(b), 311(d) and 311(e), in which case the deposit to be made
with respect to Securities for which an election has occurred pursuant to
Section 311(b) or a Conversion Event has occurred as provided in Sections
311(d) and 311(e), shall be made in the currency or currency unit in which
such Securities are payable as a result of such election or Conversion
Event), sufficient to pay and discharge the entire indebtedness on all such
Outstanding Securities of such series and any related coupons for principal
(and premium, if any) and interest, if any, to the Stated Maturity or any
Redemption Date as contemplated by Section 402, as the case may be; or
(ii) the Company has deposited or caused to be deposited with such
Trustee as obligations in trust such amount of Government Obligations as
will, as evidenced by a Certificate of a Firm of Independent Public
Accountants delivered to such Trustee, together with the predetermined and
certain income to accrue thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series and any
related coupons for unpaid principal (and premium, if any) and interest, if
any, to the Stated Maturity or any Redemption Date as contemplated by
Section 402, as the case may be; or
(iii) the Company has deposited or caused to be deposited with such
Trustee in trust an amount equal to the amount referred to in clause (i) or
(ii) in any combination of currency or currency unit or Government
Obligations;
(2) the Company has paid or caused to be paid all other sums payable with
respect to the Securities of such series and any related coupons;
(3) the Company has delivered to such 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 the entire
indebtedness on all Securities of such series and any related coupons have been
complied with; and
(4) if the Securities of such series and any related coupons are not to
become due and payable at their Stated Maturity within one year of the date of
such deposit or are not to be called for redemption within one year of the date
of such deposit under arrangements satisfactory to such Trustee as of the date
of such deposit, then the Company shall have given, not later than the date of
such deposit, notice of such deposit to the Holders of such Securities.
(b) Upon the satisfaction of the conditions set forth in this Section 401
with respect to all the Securities of any series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth
in this Indenture, shall no longer be binding upon, or applicable to, the
Company, and the Holders of the Securities of such series and any related
coupons shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 401(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Securities of such series and any related coupons which are deemed
not to be Outstanding under clause (3) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable
law, (ii) from any obligations under Sections 402(b), 607, 610 and 1010 and
(iii) from any obligations under Sections 305 and 306 (except that Securities of
such series issued upon registration of transfer or exchange or in lieu of
mutilated, destroyed, lost or stolen Securities and any related coupons shall
not be obligations of the Company) and Sections 311, 701 and 1002; and provided,
further, that in the event a petition for relief under the Bankruptcy Act of
1978 or Title 11 of the United States Code or a successor statute is filed and
not discharged with respect to the Company within 91 days after the deposit, the
entire indebtedness on all Securities of such series and any related coupons
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon Company
Request. Notwithstanding the satisfaction of the conditions set forth in this
Section 401 with respect to all the Securities of any series not denominated in
Dollars, upon the happening of any Conversion Event the Company shall
32
be obligated to make the payments in Dollars required by Section 311(d) to the
extent that the Currency Determination Agent is unable to convert any Foreign
Currency or currency unit in its possession pursuant to Section 401(a)(1)(B)
into the Dollar Equivalent of the Foreign Currency or the Dollar Equivalent of
the Currency Unit, as the case may be. If, after the deposit referred to in
Section 401 has been made, (x) the Holder of a Security is entitled to, and
does, elect pursuant to Section 311(b) to receive payment in a currency or
currency unit other than that in which the deposit pursuant to Section 401 was
made, or (y) a Conversion Event occurs as contemplated in Section 311(d) or
311(e), then the indebtedness represented by such Security shall be fully
discharged to the extent that the deposit made with respect to such Security
shall be converted into the currency or currency unit in which such Security is
payable at the Dollar Equivalent of the Foreign Currency or the Dollar
Equivalent of the Currency Unit. The Trustee for such series of Securities
shall return to the Company any non-converted funds or securities in its
possession after such payments have been made.
SECTION 402. Application of Trust Money.
(a) All money and obligations deposited with the Trustee for any
series of Securities pursuant to Section 401 shall be held irrevocably in trust
and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in accordance with the provisions of the Securities, any coupons,
this Indenture and such escrow trust agreement, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as such Trustee may determine, to the Persons entitled thereto, of the
principal of (and premium, if any) and interest, if any, on the Securities for
the payment of which such money and obligations have been deposited with such
Trustee. If Securities of any series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for any series of
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Securities against any tax, fee or other charge imposed on or assessed
against Government Obligations deposited pursuant to Section 401 or the interest
and principal received in respect of such Government Obligations other than any
such tax, fee or other charge which by law is payable by or on behalf of
Holders. The obligation of the Company under this Section 402(b) shall be deemed
to be an obligation of the Company under Section 607(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Securities shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations held by it
as provided in Section 401 which, as expressed in a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, are in excess of the
amount thereof which would then have been required to be deposited for the
purpose for which such money or Government Obligations were deposited or
received provided such delivery can be made without liquidating any Government
Obligations.
SECTION 403. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section 401 as to the
satisfaction and discharge of each series of Securities issued hereunder, and if
the Company has paid or caused to be paid all other sums payable under this
Indenture, this Indenture shall cease to be of any further effect (except as
otherwise provided herein). Upon Company Request and receipt of an Opinion of
Counsel and an Officers' Certificate complying with the provisions of Section
102, the Trustees for all series of Securities (at the expense of the Company)
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture.
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Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 304, 305, 306, 311, 402(b), 516, 607,
610, 701, 1002 and 1011 and the obligations of the Trustee for any series of
Securities under Section 402 shall survive.
SECTION 404. Reinstatement.
If the Trustee for any series of Securities is unable to apply any of the
amounts (for purposes of this Section 404, "Amounts") or Government Obligations,
as the case may be, described in Section 401(a)(1)(B)(i) or (ii), respectively,
in accordance with the provisions of Section 401 by reason of any legal
proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of such series and the
coupons, if any, appertaining thereto shall be revived and reinstated as though
no deposit had occurred pursuant to Section 401 until such time as the Trustee
for such series is permitted to apply all such Amounts or Government
Obligations, as the case may be, in accordance with the provisions of Section
401; provided, however, that if, due to the reinstatement of its rights or
obligations hereunder, the Company has made any payment of principal of (or
premium, if any) or interest, if any, on such Securities or coupons, the Company
shall be subrogated to the rights of the Holders of such Securities or coupons
to receive payment from such Amounts or Government Obligations, as the case may
be, held by the Trustee for such series.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to any particular series
of Securities means any one of the following events and such other events as may
be established with respect to the Securities of such series as contemplated by
Section 301 (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 instalment of interest upon any
Security of that series and any related coupon when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity or default in the deposit of
any sinking fund payment when and as due by the terms of any Security of that
series; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company in respect of any Security of that series contained
in this Indenture or in such Securities (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with) or in the applicable Board Resolution under which
such series is issued as contemplated by Section 301 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 for the
Securities of such series or to the Company and such Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default" hereunder;
or
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(4) the Company shall commence any case or proceeding seeking to have
an order for relief entered on its behalf as debtor or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any
other relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar
act or law of any jurisdiction, domestic or foreign, now or hereafter
existing; or the Company shall apply for a receiver, custodian or trustee
(other than any trustee appointed as a mortgagee or secured party in
connection with the issuance of indebtedness for borrowed money of the
Company) of it or for all or a substantial part of its property; or the
Company shall make a general assignment for the benefit of creditors; or the
Company shall take any corporate action in furtherance of any of the
foregoing; or
(5) an involuntary case or other proceeding shall be commenced against
the Company with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or similar official of it or any
substantial part of its property; and such case or other proceeding (A)
results in the entry of an order for relief or a similar order against it or
(B) shall continue unstayed and in effect for a period of 60 consecutive
days; or
(6) any other Event of Default provided in the Security or the Board
Resolution with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Securities
and any related coupons occurs and is continuing, then and in every such case
either the Trustee for the Securities of such series or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series may
declare the entire principal amount (or, in the case of Discounted Securities,
such lesser amount as may be provided for in the terms of that series) of all
the Securities of that series, to be due and payable immediately, by a notice in
writing to the Company (and to such Trustee if given by Holders), and upon any
such declaration of acceleration such principal or such lesser amount, as the
case may be, together with accrued interest and all other amounts owing
hereunder, shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived.
At any time after such a declaration of acceleration has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee for the Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except as provided in Sections
311(b), 311(d), and 311(e))
(A) all overdue interest on all Securities of that series and
any related coupons;
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon from the date such principal became due
at a rate per annum equal to the rate borne by the Securities of such
series (or, in the case of Discounted Securities, the Securities' Yield to
Maturity), to the extent that the payment of such interest shall be legally
enforceable;
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(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at a rate per annum equal to the rate borne
by the Securities of such series (or, in the case of Discounted Securities,
the Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel and all other amounts due to such Trustee
under Section 607;
and
(2) all Events of Default with respect to the Securities of such
series, other than the nonpayment of the principal of Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Security
of any series and any related coupons when such interest becomes due and
payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security of any series at its Maturity;
the Company will, upon demand of the Trustee for the Securities of such series,
pay to it, for the benefit of the Holders of such Securities and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium if any) and interest, if any, with interest upon the overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of interest at a
rate per annum equal to the rate borne by such Securities (or, in the case of
Discounted Securities, the Securities' Yield to Maturity); 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 such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, such
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 proceedings to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities 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 the Securities, wherever
situated.
If an Event of Default with respect to Securities of any particular series
occurs and is continuing, the Trustee for the Securities of such series may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of that series by such appropriate judicial proceedings as
such 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.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or any other obligor upon the
Securities of any series or the property of the Company or of such other obligor
or their creditors, the Trustee for the Securities of such series (irrespective
of whether the principal (or lesser amount in the case of Discounted Securities)
of any Security of such series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether such
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 lesser amount in the case of Discounted Securities) (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities of such series and any related coupons and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of such Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel
and all other amounts due to such Trustee under Section 607) and of the
Holders of the Securities of such series and any related coupons allowed in
such judicial proceeding;
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and
(iii) unless prohibited by law or applicable regulations, to
vote on behalf of the Holders of the Securities of such series in any
election of a trustee in bankruptcy or other person performing similar
functions;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities and coupons to make such payments to such Trustee, and in the event
that such Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to such Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel, and any other amounts due such Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for the
Securities of any series to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of such series or the rights
of any Holder thereof, or to authorize the Trustee for the Securities or coupons
of any series to vote in respect of the claim of any Holder in any such
proceeding, except as aforesaid, for the election of a trustee in bankruptcy or
other person performing similar functions.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons of any series may be prosecuted and enforced by the Trustee for the
Securities of any series without the possession of any of the Securities or
coupons of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such 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 such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 607, be for the ratable benefit of the
Holders of the Securities and coupons of such series in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series pursuant
to this Article with respect to the Securities or coupons of such series shall
be applied in the following order, at the date or dates fixed by such Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, if any, upon presentation of the Securities or
coupons of such series, or both, as the case may be, 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 such Trustee under Section 607;
Second: To the payment of the amounts then due and unpaid upon the
Securities and coupons of such series for principal of (and premium, if any)
and interest, if any, on such Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities and coupons for principal (and premium, if any) and interest, if
any, respectively; and
Third: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any particular series or any related coupons
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) an Event of Default with respect to that series shall have occurred and
be continuing and such Holder shall have previously given written notice to
the Trustee for the Securities of such series of such default and the
continuance thereof;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee for
the Securities of such series 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 such Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) such 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
such Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of
that series 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 Holders of Securities of that series, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of that series.
SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium,
if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject
38
to Section 307) interest, if any, on such Security on the respective Stated
Maturities expressed in such 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 such right shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a Security
or coupon has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Trustee or to such Holder, then
and in every such case the Company, such Trustee and the Holders of Securities
or coupons 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 such Trustee and such Holders shall continue as
though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee for the Securities of any series or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of
any Holder of any Security of such series to exercise any right or remedy
accruing upon any Event of Default with respect to the Securities of such series
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to such Trustee for the Securities or coupons of any series or
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any particular series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee for
the Securities of such series with respect to the Securities of that series or
exercising any trust or power conferred on such Trustee with respect to such
Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture and could not involve the Trustee in personal liability; and
(2) such Trustee may take any other action deemed proper by such Trustee
which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any particular series and any related coupons may on
behalf of the Holders of all the Securities of that series waive any past
default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of that 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 this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
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 the
Securities or coupons of any series for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, 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 for the Securities
of any series, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any particular series or to any suit instituted by any Holder of
any Security or coupon for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on any Security of such series or the
payment of any coupon on or after the respective Stated Maturities expressed in
such Security or coupon (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515. 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 for any series of Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to any
obligation of the Company hereunder or under any Security or any related coupon,
it shall become necessary to convert into any other currency or currency unit
any amount in the currency or currency unit due hereunder or under such Security
or coupon, then such conversion shall be made by the Currency Determination
Agent at the Market Exchange Rate as in effect on the date of entry of the
judgment (the "Judgment Date"). If pursuant to any such judgment, conversion
shall be made on a date (the "Substitute Date") other than the Judgment Date and
there shall occur a change between the
40
Market Exchange Rate as in effect on the Judgment Date and the Market Exchange
Rate as in effect on the Substitute Date, 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 or currency unit which, when
converted at the Market Exchange Rate as in effect on the Judgment Date, is the
amount due hereunder or under such Security or coupon. Any amount due from the
Company under this Section 516 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security or coupon. In no event, however, shall
the Company be required to pay more in the currency or currency unit due
hereunder or under such Security or coupon at the Market Exchange Rate as in
effect on the Judgment Date than the amount of currency or currency unit stated
to be due hereunder or under such Security or coupon so that in any event the
Company's obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, 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 on the
Substitute Date over the amount due and payable on the Judgment Date.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the
Securities of any series for which the Trustee is serving as such,
(1) such 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 such Trustee; and
(2) in the absence of bad faith on its part, such 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 such 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 such Trustee, such 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 a series of Securities has
occurred and is continuing, the Trustee for the Securities of such series shall
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
for Securities of any series from liability for its own grossly negligent
action, its own grossly 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) such 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;
41
(3) such Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities of any particular series, determined as provided in Section 512,
relating to the time, method and place of conducting any proceeding for any
remedy available to such Trustee, or exercising any trust or power conferred
upon such Trustee, under this Indenture with respect to the Securities of
that series; and
(4) no provision of this Indenture shall require the Trustee for any series
of Securities 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 for any series of Securities shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to
Securities of any particular series, the Trustee for the Securities of such
series shall give to Holders of Securities of that series, in the manner set
forth in Section 106, notice of such default known to such 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, if any, on any Security of that series, or in the deposit of any
sinking fund payment with respect to Securities of that series, such 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 such Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
that series and related coupons; and provided, further, that in the case of any
default of the character specified in Section 501(3) with respect to Securities
of that series no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of that series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Security may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, discretion, consent,
order, bond, debenture 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 may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
42
(d) such Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) such 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 Securities of any series pursuant to this Indenture for
which it is acting as Trustee, unless such Holders shall have offered to such
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) such 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, discretion, consent, order,
bond, debenture or other paper or document, but such Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters at it may see fit, and, if such Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney; and
(g) such 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 such Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication thereof, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee for any series of Securities,
nor any Authenticating Agent assumes any responsibility for their correctness.
The Trustee for any series of Securities makes no representations as to the
validity or sufficiency of this Indenture or of the Securities of any series or
coupons. Neither the Trustee for any series of Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent, Paying
Agent, Security Registrar or any other agent of the Company or such Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder
need not be segregated from other funds except as provided in Section 115 and
except to the extent required by law. The Trustee for any series of Securities
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee for any series of Securities 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
for any series of Securities in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by such Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its gross negligence or bad faith; and
(3) to indemnify such Trustee and its agents in Dollars for, and to hold
them harmless against, any loss, liability or expense incurred without gross
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under this
Section the Trustee for any series of Securities shall have a lien prior to the
Securities upon all property and funds held or collected by such Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest, if any, on particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of Section
310(b) of the Trust Indenture Act during the period of time required thereby.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded Securities of any
particular series of Securities other than that series.
SECTION 609. Corporate Trustee Required; Different Trustees for Different
Series; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(i) 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, and subject to
supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to
a rule, regulation, or other order of the Commission, authorized under such
laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustee,
having a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to 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
44
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 the common control with the Company shall
serve as Trustee for the Securities. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereunder specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series
and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee for the Securities of any series may resign at any time with
respect to the Securities of such series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee for the Securities of
such series within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee for the Securities of any series may be removed at any time
with respect to the Securities of such series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series,
delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply with
Section 310(b) of the Trust Indenture Act pursuant to Section 608 hereof
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security of such series for at least six months, unless
the Trustee's duty to resign is stayed in accordance with the provisions of
Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) such Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of such Trustee or of its property shall
be appointed or any public officer shall take charge or control of such
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 such
Trustee or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a successor
Trustee.
(e) If the Trustee for the Securities of any series shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of
Trustee for the Securities of any series for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of such series and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of such series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee for the Securities of such series and supersede the successor Trustee
appointed by the Company.
45
If no successor Trustee for the Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 611, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series in the manner and
to the extent provided in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Securities of that series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to the
Securities of any series 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 the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment 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 Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
Subsections (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 for the Securities of any series shall be
qualified and eligible under this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee or the
Authenticating Agent for such series then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee or Authenticating
Agent, as the case may be, may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee or
successor Authenticating Agent had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee for the
Securities of any series 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 a
default, then, unless and until such default shall be cured, such Trustee shall
set apart and hold in a special account for the benefit of such Trustee
individually, the Holders of the Securities of any such series and any coupons
appertaining thereto 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 months' 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 setoff which such Trustee
could have exercised if a petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
(2) all property received by such 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 months' period, or
an amount equal to 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 such 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 such 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 for reorganization pursuant to Title 11 of the
United States Code or applicable State 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 months' 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 months'
period and such property was received as security therefor simultaneously
with the creation thereof, and if such Trustee shall sustain the burden of
proving that at the time such property was so received such
47
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 purpose of paragraphs (B), (C) and (D), property substituted after
the beginning of such three months' 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 such Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If such Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between such
Trustee, the Holders of the Securities of such series and the holders of other
indenture securities in such manner that such Trustee, such 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
Title 11 of the United States Code or applicable State law, the same percentage
of their respective claims figured before crediting to the claim of such Trustee
anything on 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 such Trustee and the Holders of the Securities of such series 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
Title 11 of the United States Code or applicable State 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 Title 11 of the United States Code or applicable
State 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 between such Trustee and the Holders of the
Securities of such series and 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 such Trustee and the
Holders of the Securities of such series 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 claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed with respect to the Securities
of any series after the beginning of such three months' period shall be subject
to the provisions of this Subsection as though such resignation or removal had
not occurred. If any Trustee has so resigned or been removed prior to the
beginning of such three months' 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 for the Securities of such series, occurred after the beginning of
such three months' period; and
48
(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 such Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any 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 of the Securities of the
applicable series 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, escrow agent, 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; or
(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 Securities of the applicable
series 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 or under
this Indenture with respect to the Securities of any other series (i) under
which such 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 or bankers 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
49
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 such Trustee simultaneously
with the creation 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 Securities.
SECTION 614. Authenticating Agents.
From time to time the Trustee for the Securities of any series may, subject
to its sole discretion, appoint one or more Authenticating Agents with respect
to the Securities of such series, which may include the Company or any Affiliate
of the Company, with power to act on the Trustee's behalf and subject to its
discretion in the authentication and delivery of Securities of such series in
connection with transfers and exchanges under Sections 304, 305 and 1107 as
fully to all intents and purposes as though such Authenticating Agent had been
expressly authorized by those Sections of this Indenture to authenticate and
deliver Securities of such series. For all purposes of this Indenture, the
authentication and delivery of Securities of such series by an Authenticating
Agent for such Securities pursuant to this Section shall be deemed to be
authentication and delivery of such Securities "by the Trustee" for the
Securities of such series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually pursuant to law or the
requirements of such 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. If at any time an Authenticating Agent for any
series of Securities 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, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent for any series of Securities may resign at any
time by giving written notice of resignation to the Trustee for such series and
to the Company. The Trustee for any series of Securities may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company in the manner set
forth in Section 105. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent for any series of
Securities shall cease to be eligible under this Section, the Trustee for such
series may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Company and shall give written notice of such
appointment to all Holders of Securities of such series in the manner set forth
in Section 106. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee for the Securities of each series agrees to pay to any
Authenticating Agent for such series from time to time reasonable compensation
for its services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 607.
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If an appointment with respect to one or more series of Securities is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certification of authentication, an
alternate certificate of authentication in the following form:
"This is one of the Securities of the series designated therein described
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By.............................................
As Authenticating Agent
By.............................................
Authorized Officer"
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Company will
furnish or cause to be furnished to the Trustee for the Securities of such
series,
(a) semiannually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to
that series, on June 30 and December 31), a list, in such form as such
Trustee may reasonably require, containing all the information in the
possession or control of the Company or any of its Paying Agents other than
such Trustee as to the names and addresses of the Holders of that series as
of such dates,
(b) on semi-annual dates on each year to be determined pursuant to Section
301 if the Securities of such series do not bear interest, a list of similar
form and content, and
(c) at such other times as such 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,
excluding from any such list names and addresses received by such Trustee in its
capacity as Security Registrar for the Securities of such series, if so acting.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as current
a form as is reasonably practicable, the names and addresses of Holders of the
Securities of such series contained in the most recent lists furnished to such
Trustee as provided in Section 701 and the names and addresses of Holders of the
Securities of such series received by such Trustee in its capacity as Security
Registrar for such series, if so acting. The Trustee
51
for each series of Securities may destroy any list relating to such series of
Securities furnished to it as provided in Section 701 upon receipt of a new list
relating to such series so furnished.
(b) If three or more Holders of Securities of any particular series
(hereinafter referred to as "applicants") apply in writing to the Trustee for
the Securities of any such series, and furnish to such Trustee reasonable proof
that each such applicant has owned a Security of that series 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
Securities of that series with respect to their rights under this Indenture or
under the Securities of that series and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then
such 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 such Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities of that series whose names and addresses appear in the
information preserved at the time by such Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If any such Trustee shall elect not to afford such applicants access to that
information, such Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of that series whose name and address appears
in the information preserved at the time by such Trustee in accordance with
Section 702(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to such
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, such 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 such Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of that series 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, such 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 such Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities of each series or coupons, by receiving and
holding the same, agrees with the Company and the Trustee for the Securities of
such series that neither the Company nor such Trustee, nor any agent of either
of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of the Securities of
such series in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after March 15 of each year commencing with the year
following the first issuance of Securities, the Trustee for the Securities of
each series shall transmit by mail to all Holders of the Securities of such
series, as provided in subsection (c) of this Section a brief report dated as of
such date with respect to any of the following events which may have occurred
within the prior 12 months (but if no such event has occurred within such period
no report need be transmitted):
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(1) any change to its eligibility under Section 609 and its qualifications
under Section 608;
(2) the creation of any material change to a relationship specified in
Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if such Trustee elects
so to state, the circumstances surrounding the making thereof) made by such
Trustee (as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities of such series, on any property or funds held or collected
by it as Trustee, except that such 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 Securities of such
series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other indebtedness
owing by the Company (or by any other obligor upon the Securities of such
series) to such 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 613(b)(2), (3), (4) or (6);
(5) the property and funds, if any, physically in the possession of such
Trustee as such on the date of such report;
(6) any additional issue of Securities of such series which such Trustee
has not previously reported; and
(7) any action taken by such Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities of such series, except action in respect of
a default, notice of which has been or is to be withheld by such Trustee in
accordance with Section 602.
(b) The Trustee for each series of Securities shall transmit by mail to
all Holders of Securities of such series, as provided in subsection (c) of this
Section, a brief report with respect to the character and amount of any advances
(and if such Trustee elects so to state, the circumstances surrounding the
making thereof) made by such Trustee (as such) since the date of the last report
transmitted pursuant to subsection (a) of this Section (or if no such report has
yet been so transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities 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 such Trustee 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 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 shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and addresses of
such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee
for such series of Bearer Securities for that purpose; and
53
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved at
the time by such Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders of Securities of any series, be filed by the Trustee for the Securities
of such series with each securities exchange upon which the Securities of such
series are listed and also with the Commission. The Company will notify such
Trustee when such series of Securities is listed on any securities exchange.
SECTION 704. Reports by Company.
The Company will:
(1) file with the Trustee for the Securities of such series, 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; or, if the Company is not
required to file information, documents or reports pursuant to either of said
Sections, then it will file with such Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time in such rules and
regulations;
(2) file with the Trustee for the Securities of such series 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 by mail to all Holders of Securities of each series, as
provided in Section 703(c), within 30 days after the filing thereof with the
Trustee for the Securities of such series, 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 EIGHT
Consolidation, Merger, Conveyance or Transfer
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person unless:
(1) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the properties
and assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee for each series of
Securities, in form satisfactory to each such Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest, if any,
(including all additional amounts, if any, payable
54
pursuant to Sections 516 or 1010) on all the Securities and any related coupons
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 with respect to any series of Securities, and no event which, after
notice or lapse of time, or both, would become an Event of Default with respect
to any series of Securities, shall have happened and be continuing;
(3) the successor corporation assuming the Securities and coupons shall
have agreed, by supplemental indenture, to indemnify the individuals liable
therefor for the amount of United States federal estate tax paid solely as a
result of such assumption in respect of Securities and coupons held by
individuals who are not citizens or residents of the United States at the time
of their death; and
(4) the Company has delivered to the Trustee for each series of Securities
an Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture, the Securities and any related coupons and, in the event of any such
consolidation, merger, conveyance or transfer, the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up, or
liquidated.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee for the Securities of any
or all series, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to such Trustee, for any of
the following purposes:
(1) to evidence the succession of another corporation to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the Holders
of all or any particular series of Securities and any related coupons (and,
if such covenants are to be for the benefit of fewer than all series of
Securities, stating that such covenants are being included solely for the
benefit of such series), or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with respect to any or all
series of Securities (and, if any such Event of Default applies to fewer than
all series of Securities, stating each series to which such Event of Default
applies); or
55
(4) to add to or to change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations, to
provide for the issuance of uncertificated Securities of any series in
addition to or in place of any certificated Securities and to make all
appropriate changes for such purposes; provided, however, that any such
action shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided, however, that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to evidence and provide for the acceptance of appointment hereunder of
a Trustee other than Chemical Bank as Trustee for a series of 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
609; or
(7) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(8) to add to the conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth, other conditions, limitations
and restrictions thereafter to be observed; or
(9) 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 Section 401; provided, however, that any
such action shall not adversely affect the interests of the Holders of
Securities of such series and any related coupons or any other series of
Securities in any material respect; or
(10) to add to or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act; or
(11) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, to convey,
transfer, assign, mortgage or pledge any property to or with the Trustee for
the Securities of any series or to surrender any right or power herein
conferred upon the Company, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities of any
particular series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee for the
Securities of any or all series may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of such Securities and any
related coupons under this Indenture, but only with the consent of the Holders
of more than 50% in aggregate principal amount of the Outstanding Securities of
each series of Securities then Outstanding affected thereby, in each case by Act
of said Holders of Securities of each such series
56
delivered to the Company and the Trustee for Securities of each such series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, if any, or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
additional amounts pursuant to Section 1011 (except as contemplated by
Section 801(1) and permitted by Section 901(1)) or reduce the amount of the
principal of a Discounted Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502,
or change the Place of Payment, or the currency or currency unit in which any
Security or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any particular series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for
in this Indenture; or
(3) modify any of the provisions of this Section or Section 513 or 1009,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a Security
or coupon with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1009, or the deletion of this
proviso, in accordance with the requirements of Sections 609, 61l(b), 901(6)
and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee for any series of Securities shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee for any series of Securities may, but shall not be obligated to, enter
into any such supplemental indenture which affects such Trustee's own rights,
liabilities, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
57
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee for the Securities of such series, bear a notation in
form approved by such Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series and
any related coupons so modified as to conform, in the opinion of the Trustee for
the Securities of such series and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by such Trustee in exchange for Outstanding
Securities of such series and any related coupons.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Company agrees, for the benefit of each particular series of Securities,
that it will duly and punctually pay in the currency or currency unit in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except as provided
in Sections 311(b), 311(d) and 311(e)) the principal of (and premium, if any)
and interest, if any, on that series of Securities in accordance with the terms
of the Securities of such series, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, 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. The interest, if any, due in respect of any temporary or
permanent global Security, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Security, shall
be payable, subject to the conditions set forth in Section 1011, only upon
presentation of such Security to the Trustee thereof for notation thereon of the
payment of such interest.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities the
Company will maintain in each Place of Payment for that series an office or
agency where Securities of that series may be presented or surrendered for
payment, an office or agency where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company with respect to the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) an office or agency in a Place of
Payment for that series in the United States where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the 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
58
agency where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
series are listed on the 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 Securities of that series in Luxembourg or
any other required city located outside the United States, as the case may be,
so long as the Securities of that series are listed on such exchange, and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee for the Securities of that series of the location,
and any change in the location, of any such office or agency. If at any time
the Company shall fail to maintain any such required office or agency in respect
of any series of Securities or shall fail to furnish the Trustee for the
Securities of that series with the address thereof, such presentations (to the
extent permitted by law), and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust Office
of such Trustee, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment at the offices specified in
the Security, and the Company hereby appoints the same as its agent to receive
such respective presentations, surrenders, notices and demands.
No payment of principal (and premium, if any) or interest, if any, on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States. Payments will
not be made in respect of Bearer Securities or coupons appertaining thereto
pursuant to presentation to the Company or its designated Paying Agents within
the United States. Notwithstanding the foregoing, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security denominated and
payable in Dollars will be made at the office of the Company's Paying Agent in
the United States, if, and only if, payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for that purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions and the Company has delivered to the
Trustee an Opinion of Counsel to that effect.
The Company may also from time to time designate one or more other offices or
agencies (in or outside the Place of Payment) where the Securities of one or
more series may be presented or surrendered for any or all of the purposes
specified above in this Section and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for such purpose. The Company will give prompt written
notice to the Trustee for the Securities of each series so affected of any such
designation or rescission and of any change in the location of any such office
or agency.
If and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any particular series of Securities and any related coupons, it will, on or
before each due date of the principal of (and premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the currency or currency
unit in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except
as provided in Sections 311(b), 311(d)
59
and 311(e)) sufficient to pay the principal (and premium, if any) and interest,
if any, so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
for the Securities of such series of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any particular
series of Securities and any related coupons, it will, prior to each due date of
the principal of (and premium, if any) or interest, if any, on any such
Securities, deposit with a Paying Agent for the Securities of such series a sum
(in the currency or currency unit described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) and interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Securities other than the Trustee for the Securities of such series to execute
and deliver to such Trustee an instrument in which such Paying Agent shall agree
with such Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company (or any other
obliger upon the Securities) in the making of any payment of principal (or
premium, if any) and interest, if any, on Securities of that series; and
(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such 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 for the Securities of any
series all sums held in trust by the Company or such Paying Agent, such sums to
be held by such 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 such Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee for the Securities of any series or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) and interest, if any, on any Security of any
particular series and remaining unclaimed for two years after such principal
(and premium, if any) and interest, if any, has become due and payable shall,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trusts; and the
Holder of such Security shall, thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of such 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 such
Trustee or such Paying Agent, before being required to make any such repayment
may give written notice to the Holder of such Security in the manner set forth
in Section 106, or may, in its discretion, in the name and at the expense of the
Company, cause to be published at least once in a newspaper published in the
English language, customarily on each Business Day and of general circulation in
New York, New York notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
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SECTION 1004. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or upon its income, profits or property, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon its property; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 1005. Statements as to Compliance.
The Company will deliver to the Trustee for each series of Securities, within
120 days after the end of each fiscal year, a written statement signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company stating that:
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the Company is
in compliance with all conditions and covenants under this Indenture.
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 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1007. Limitations on Liens.
(a) Except as expressly provided in Subsection (b) of this Section 1007,
the Company will not, and will not permit any Subsidiary to, directly or
indirectly, create, assume, incur or suffer to be created, assumed or incurred,
any mortgage, lien, charge or encumbrance on, or conditional sale or other title
retention agreement (all of the foregoing being hereinafter referred to as
"liens") (i) upon any shares of stock issued by any Subsidiary, or (ii) upon any
manufacturing plant or facility owned and operated by the Company or any
Subsidiary which is determined to be a materially important manufacturing plant
or facility by the Board of Directors in its discretion (a "Principal
Facility"), without making effective provision whereby all the Securities shall
be directly secured equally and ratably with the indebtedness or other
obligations secured by such lien, so long as any such indebtedness or other
obligations shall be so secured; provided, however, that the foregoing covenants
shall not be applicable to the following:
(1) liens for taxes, assessments or governmental charges or levies not yet
delinquent or being contested in good faith by appropriate proceedings
diligently conducted, if such reserve or other appropriate provision, if any,
as shall be required by generally accepted accounting principles shall have
been made therefor;
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(2) in the case of a Principal Facility, liens of landlords and liens of
mechanics and materialmen incurred in the ordinary course of business for
sums not yet due or being contested in good faith by appropriate proceedings
diligently conducted, if such reserve or other appropriate provision, if any,
as shall be required by generally accepted accounting principles, shall have
been made therefor;
(3) liens incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance and other types of social
security, or to secure the performance of or compliance with statutory
obligations, excise tax laws, and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(4) any judgment lien, unless the judgment it secures shall not, within 60
days after the entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall not have been discharged within 60 days after
the expiration of any such stay;
(5) in the case of a Principal Facility, leases or subleases granted to
others in the ordinary course of business;
(6) in the case of a Principal Facility, easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course
of business and not interfering with the ordinary conduct of the business of
the Company;
(7) in the case of a Principal Facility, liens incurred in connection with
the issuance by a state or political subdivision thereof of any securities
the interest on which is exempt from federal income taxes by virtue of
Section 103 of the Code or any other laws or regulations in effect at the
time of such issuance;
(8) liens securing indebtedness owed by a Subsidiary to the Company or
another Subsidiary;
(9) liens on property or shares of stock existing when acquired (including
merger and consolidation) or securing the payment of all or part of the
purchase price, construction or improvement thereof incurred prior to, at the
time of, or within 120 days after the later of the acquisition, completion of
construction or commencement of full operation of such property or within 120
days after the acquisition of such shares for the purpose of financing all or
a portion of such purchase thereof or construction thereon; or
(10) liens for the sole purpose of extending, renewing or replacing in
whole or in part the indebtedness secured by any lien referred to in the
foregoing clauses (1) through (9) or in this clause (10); provided, however,
that the principal amount of indebtedness secured thereby shall not exceed
the principal amount of indebtedness so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured
the lien so extended, renewed or replaced (plus improvements on such
property).
(b) The Company and/or any Subsidiary may create, assume or incur, or
suffer to be created, assumed or incurred, liens which would otherwise be
prohibited by Subsection (a) of this Section 1007, provided that the
indebtedness secured thereby plus the aggregate value of the Sale and Leaseback
Transactions permitted by the provisions of Subsection (b) of Section 1008 does
not at the time exceed 10% of Consolidated Net Tangible Assets.
(c) Within 15 days of its adoption, the Company will deliver to the Trustee
for each series of Securities any Board Resolution evidencing the determination
of a Principal Facility.
(d) The Certificate of a Firm of Independent Public Accountants shall be
conclusive evidence as to the amount, at the date specified in such Certificate,
of Consolidated Net Tangible Assets.
SECTION 1008. Sale and Leaseback Transactions.
(a) Neither the Company nor any Subsidiary will sell or transfer a
Principal Facility with the intention of taking back a lease of such property,
except a lease for a temporary period with the intent that the use by the
Company or a Subsidiary will be discontinued on or before the expiration of such
period (any transaction subject
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to the provisions of this Section 1008 being herein referred to as a "Sale and
Leaseback Transaction") unless the Company shall apply an amount equal to the
value of the property so leased to the retirement (other than any mandatory
retirement), within 90 days of the effective date of any such arrangement, of
non-subordinated indebtedness for money borrowed by the Company which had a
stated maturity of more than one year from the date of its creation.
(b) The Company or a Subsidiary may enter into a Sale and Leaseback
Transaction which would otherwise be prohibited by Subsection (a) of this
Section 1008, provided that the value thereof plus the aggregate indebtedness
permitted to be secured under the provisions of Subsection (b) of Section 1007
do not at the time exceed 10% of Consolidated Net Tangible Assets.
(c) The term "value" shall, for the purpose of this Section 1008 and Section
1007(b), mean, with respect to a Sale and Leaseback Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds of the
sale of the property leased pursuant to such Sale and Leaseback Transaction or
(ii) the fair value of such property at the time of entering into such Sale and
Leaseback Transaction, as determined by the Board of Directors, in each such
case divided first by the number of full years of the term of the lease and then
multiplied by the number of full years of such term remaining at the time of
determination, without regard to any renewal or extension options contained in
the lease.
(d) The Certificate of a Firm of Independent Public Accountants shall be
conclusive evidence as to the amount, at the date specified in such Certificate,
of Consolidated Net Tangible Assets.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1004 to 1008, inclusive, if before or after
the time for such compliance the Holders of more than 50% in principal amount of
the Outstanding Securities of each series of Securities affected by the omission
shall, in each case by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee for the Securities of
each series with respect to any such covenant or condition shall remain in full
force and effect.
SECTION 1010. Defeasance of Certain Obligations.
If specified pursuant to Section 301 to be applicable to the Securities of
any series, the Company may omit to comply with any term, provision or condition
set forth in Section 801, Section 1007, Section 1008 and any other covenant not
set forth herein and specified pursuant to Section 301 to be applicable to the
Securities of such series and subject to this Section 1010, and any such
omission with respect to such Sections shall not be an Event of Default, in each
case with respect to the Securities of such series; provided, however, that the
following conditions have been satisfied:
(1) with respect to all Outstanding Securities of such series and any
coupons appertaining thereto not theretofore delivered to the Trustee of
such series for cancellation:
(i) the Company has deposited or caused to be deposited with such
Trustee as trust funds in trust an amount in the currency or currency
unit in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except as provided in Sections 311(b), 311(d) and 311(e),
in which case the deposit to be made with respect to Securities for
which an election has occurred pursuant to Section 311(b), or a
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Conversion Event has occurred as provided in Sections 311(d) and
311(e), shall be made in the currency or currency unit in which such
Securities are payable as a result of such election or Conversion
Event), sufficient to pay and discharge the entire indebtedness on all
such Outstanding Securities of such series and any related coupons for
principal (and premium, if any) and interest, if any, to the Stated
Maturity or any Redemption Date as contemplated by Section 402, as the
case may be; or
(ii) the Company has deposited or caused to be deposited with
such Trustee as obligations in trust such amount of Government
Obligations as will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, together
with the predetermined and certain income to accrue thereon (without
consideration of any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for unpaid principal
(and premium, if any) and interest, if any, to the Stated Maturity or
any Redemption Date as contemplated by Section 402, as the case may
be; or
(iii) the Company has deposited or caused to be deposited with
such Trustee in trust an amount equal to the amount referred to in
clause (i) or (ii) in any combination of currency or currency unit or
Government Obligations;
(2) 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;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 501(6) or
Section 501(7) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 501(6) or Section
501(7) shall have occurred and be continuing on the 91st day after such
date; and
(4) 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 defeasance contemplated in the Section
have been complied with.
All the obligations of the Company under this Indenture with respect to the
Securities of such series, other than with respect to Section 801, Section
1007, Section 1008 and any other covenant not set forth herein and specified
pursuant to Section 301 to be applicable to the Securities of such series and
subject to this Section 1010, shall remain in full force and effect.
Anything in this Section 1010 to the contrary notwithstanding, the Trustee
for any series of Securities shall deliver or pay to the Company, from time
to time upon Company Request, any money or Government Obligations held by it
as provided in this Section 1010 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in
excess of the amount thereof which would then have been required to be
deposited for the purpose for which such money or Government Obligations were
deposited or received, provided such delivery can be made without liquidating
any Government Obligations.
SECTION 1011. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this Section 1011
shall be applicable to Securities of any series.
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The Company will, subject to the exceptions and limitations set forth below,
pay to the Holder of any Security or coupon who is a United States Alien such
additional amounts as may be necessary so that every net payment on such
Security or coupon, after deduction or withholding by the Company or any of its
Paying Agents for or on account of any present or future tax, assessment or
other governmental charge imposed upon or as a result of such payment by the
United States (or any political subdivision or taxing authority thereof or
therein), will not be less than the amount provided in such Security or in such
coupon to be then due and payable. However, the Company will not be required to
make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge that would not have
been so imposed but for (i) the existence of any present or former connection
between such Holder (or between a fiduciary, settler or beneficiary of, or a
person holding a power over, such Holder, if such Holder is an estate or
trust, or a member or shareholder of such Holder, if such Holder is a
partnership or corporation) and the United States, including, without
limitation, such Holder (or such fiduciary, settler, beneficiary, person
holding a power, member or shareholder) being or having been a citizen,
resident or treated as a resident thereof or being or having been engaged in
trade or business or present therein or having or having had a permanent
establishment therein, or (ii) such Holder's present or former status as a
personal holding company, foreign personal holding company, controlled
foreign corporation or passive foreign investment company with respect to the
United States or as a corporation that accumulates earnings to avoid United
States federal income tax;
(b) any tax, assessment or other governmental charge which would not have
been so imposed but for the presentation by the Holder of such Security or
coupon for payment on a date more than 10 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property tax
or any similar tax, assessment or other governmental charge;
(d) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment in respect of any Security or
coupon, if such payment can be made without such withholding by at least one
other Paying Agent;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments in respect of such Security or
coupon;
(f) any tax, assessment or other governmental charge imposed on a Holder of
a Security or coupon that actually or constructively owns 10 percent or more
of the total combined voting power of all classes of stock of the Company
entitled to vote within the meaning of Section 871(h)(3) of the Code or that
is a controlled foreign corporation related to the Company through stock
ownership;
(g) any tax, assessment or other governmental charge imposed as a result of
the failure to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of a Security or coupon, if such compliance is required by
statute or by regulation of the United States, as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(h) any tax, assessment or other governmental charge imposed with respect
to payments on any Registered Security by reason of the failure of the Holder
to fulfill the statement requirement of Sections 871(h) or 881(c) of the
Code; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) and (h);
65
nor will additional amounts be paid with respect to any payment on any such
Security or coupon to a Holder who is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision thereof)
to be included in the income for federal income tax purposes of a beneficiary or
settler with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to payment of the additional
amounts had beneficiary, settler, member or beneficial owner been the Holder of
such Security or coupon.
The term "United States Alien" means any corporation, partnership, individual
or fiduciary that is, as to the United States, a foreign corporation, a
nonresident alien individual, a nonresident fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, as to
the United States, a foreign corporation, a nonresident alien individual or a
nonresident fiduciary of a foreign estate or trust.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of (and premium, if any) and interest, if any, on any Security or
payment with respect to any coupon of any series, such mention shall be deemed
to include mention of the payment of additional amounts provided for in the
terms of such Securities and this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional amounts
as contemplated by Section 301(20), at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to maturity, the first day on which a
payment of principal and any premium is made), and at least 10 days prior to
each date of payment of principal (and premium, if any) and interest, if any, if
there has been any change with respect to the matters set forth in the below
mentioned Officers' Certificate, the Company will furnish the Trustee for that
series of Securities and the Company's principal Paying Agent or Paying Agents,
if other than such Trustee, with an Officers' Certificate instructing such
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of (and premium, if any) and interest, if any, on the Securities of that series
shall be made to Holders of Securities of that series or any related coupons who
are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge referred to above or described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee for such series of Securities or such Paying
Agent such additional amounts as may be required pursuant to the terms
applicable to such series. The Company covenants to indemnify the Trustee for
such series of Securities and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without gross
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 1011.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
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Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all of the Securities of any particular
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee for
the Securities of such series) notify such Trustee by Company Request of such
Redemption Date and of the principal amount of Securities of that series to be
redeemed and shall deliver to such Trustee such documentation and records as
shall enable such Trustee to select the Securities to be redeemed pursuant to
Section 1103. In the case of any redemption of Securities of any series prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee for Securities of such series with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Company may select
the series to be redeemed, and if less than all the Securities of any series are
to be redeemed, the particular Securities of that series to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee for
the Securities of such series, from the Outstanding Securities of that series
not previously called for redemption, by such method as such Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series, or any integral multiple thereof) of the principal amount of Securities
of that series of a denomination larger than the minimum authorized denomination
for Securities of that series pursuant to Section 302 in the currency or
currency unit in which the Securities of such series are denominated.
The Trustee for the Securities of any series to be redeemed shall promptly
notify the Company in writing of the Securities of such series selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not
later than the thirtieth day and not earlier than the sixtieth day prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series are to
be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date are to be surrendered for payment of the Redemption
Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the Redemption Price
or security or indemnity satisfactory to the Company, the Trustee for such
series and any Paying Agent is furnished, and
(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 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee for such Securities in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company shall
deposit with the Trustee for the Securities to be redeemed or with a Paying
Agent for such Securities (or, if the Company is acting as its own Paying Agent
for such Securities, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such Series and except as provided in Sections 311(b), 311(d)
and 311(e)) sufficient to pay the principal amount of (and premium, if any,
thereon), and (except if the Redemption Date shall be an Interest Payment Date)
any accrued interest on, all the Securities which are to be redeemed on that
date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified in the currency or currency unit in which the Securities
of such series are payable (except as otherwise provided pursuant to Section 301
for the Securities of such series and except as provided in Sections 311(b),
311(d) and 311(e)) and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of such Security for redemption in accordance with said
notice together with all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Security or specified portions thereof 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 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest, and provided, further, that unless
otherwise specified as contemplated by Section 301, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable
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to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by
all coupons appertaining thereto maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons or the surrender of such missing
coupon or coupons may be waived by the Company if there is furnished to the
Company, the Trustee for such Security and any Paying Agent such security or
indemnity as they may require to save the Company, such Trustee and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
such Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal thereof (and premium, if any, thereon)
shall, until paid, bear interest from the Redemption Date at a rate per annum
equal to the rate borne by the Security (or, in the case of Discounted
Securities, the Security's Yield to Maturity).
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Security Registrar for such
Security duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute and such Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Registered
Security or Securities, of any authorized denomination as requested by such
Holder, of the same series and having the same terms and provisions and in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Registered Security so surrendered.
SECTION 1108. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301, Securities of any
series may be redeemed at the option of the Company in whole, but not in part,
on not more than 60 days' and not less than 30 days' notice, on any Redemption
Date at the Redemption Price specified pursuant to Section 301, if the Company
determines that (A) as a result of any change in or amendment to the laws (or
any regulations or rulings promulgated thereunder) of the United States or of
any political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction in the United States), which change or amendment
is announced or becomes effective on or after a date specified in Section 301
with respect to any Security of such series, the Company has or will become
obligated to pay additional amounts pursuant to Section 1011 with respect to any
Security of such series or (B) on or after a date specified in Section 301 with
respect to any Security of such series, any action has been taken by any taxing
authority of, or any decision has been rendered by a court of competent
jurisdiction in, the United States or any political subdivision or taxing
authority thereof or therein, including any of those actions specified in (A)
above, whether or not such action was taken or decision was rendered with
respect to the Company, or any change, amendment, application or interpretation
shall be officially proposed, which, in any such case, in the Opinion of Counsel
to the Company will result in a material probability that the Company will
become obligated to pay additional amounts with respect to any Security of such
series, and (C) in any such case specified in (A) or (B) above the Company, in
its business judgment, determines that such obligation cannot be avoided by the
use of reasonable measures available to the Company.
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(b) Unless otherwise specified pursuant to Section 301, if the Company shall
determine that any payment made outside the United States by the Company or any
of its Paying Agents of principal or interest due in respect of any Bearer
Security (an "Affected Security") of such series or any coupon appertaining
thereto would, under any present or future laws or regulations of the United
States, be subject to any certification, information or other reporting
requirement of any kind, the effect of which requirement is the disclosure to
the Company, any Paying Agent or any governmental authority of the nationality,
residence or identity (as distinguished from, for example, status as a United
States Alien) of a beneficial owner of such Affected Security of such series or
coupon that is a United States Alien (other than such a requirement that (i)
would not be applicable to a payment made by the Company or any one of its
Paying Agents (A) directly to the beneficial owner or (B) to a custodian,
nominee or other agent of the beneficial owner, (ii) can be satisfied by such
custodian, nominee or other agent certifying to the effect that such beneficial
owner is a United States Alien; provided that, in each case referred to in
clauses (i)(B) or (ii), payment by such custodian, nominee or other agent to
such beneficial owner is not otherwise subject to any such requirement (other
than a requirement which is imposed on a custodian, nominee or other agent
described in item (iv) of this sentence), (iii) would not be applicable to a
payment made by at least one other Paying Agent of the Company or (iv) is
applicable to a payment to a custodian, nominee or other agent of the beneficial
owner of such Security who is a United States person (as hereinafter defined), a
controlled foreign corporation for United States tax purposes, a foreign person
50 percent or more of the gross income of which for the three-year period ending
with the close of its taxable year preceding the year of payment is effectively
connected with a United States trade or business, or is otherwise related to the
United States), the Company shall elect by notice to the Trustee for such series
of Securities either (x) to redeem the Affected Securities of such series, as a
whole, at a redemption price equal to the principal amount thereof, together
with interest accrued to the date fixed for redemption, or (y) if the conditions
of the next succeeding paragraph are satisfied, to pay the additional amounts
specified in such paragraph. The Company shall make such determination and
election as soon as practicable and give prompt notice thereof (the
"Determination Notice") in the manner described in Section 106 stating the
effective date of such certification, information or reporting requirement,
whether the Company has elected to redeem the Affected Securities of such series
or to pay the additional amounts specified in the next succeeding paragraph, and
(if applicable) the last date by which the redemption of the Affected Securities
of such series must take place, as provided in the next succeeding sentence. If
the Company elects to redeem the Affected Securities of such series, such
redemption shall take place on such date, not later than one year after the
giving of the Determination Notice, as the Company shall specify by notice to
such Trustee given not less than 45 nor more than 75 days before the Redemption
Date. Notice of such redemption of the Affected Securities of such series shall
be given to the Holders thereof not less than 30 days nor more than 60 days
prior to the Redemption Date. Notwithstanding the foregoing, the Company shall
not so redeem the Affected Securities of such series if the Company shall
subsequently determine by notice to the Trustee, not less than 30 days prior to
the Redemption Date, that subsequent payments on the Affected Securities of such
series would not be subject to any such certification, information or other
reporting requirement, in which case the Company shall give prompt notice of
such subsequent determination in the manner specified in Section 106 and any
earlier redemption notice shall be revoked and be of no further effect. The
right of the Holders of Affected Securities called for redemption to exchange
such Affected Securities for Registered Securities (which Registered Securities
will remain Outstanding following such redemption) will terminate on the
fifteenth day prior to the Redemption Date, and no further exchanges of Affected
Securities for Registered Securities shall be permitted unless the Company shall
have made the subsequent determination and given the notice referred to in the
preceding sentence. As used hereinabove, "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.
If and so long as the certification, information or other reporting
requirement referred to in the preceding paragraph would be fully satisfied by
payment of a withholding tax, backup withholding tax or similar charge, the
Company may elect by notice to the Trustee to pay such additional amounts as may
be necessary so that every net payment made outside the United States following
the effective date of such requirement by the Company or any
70
of its Paying Agents of principal (or premium, if any) or interest, if any, due
in respect of any Affected Security of such series or any coupon appertaining
thereto to a Holder who certifies that the beneficial owner is a United States
Alien (but without any requirement that the nationality, residence or identity
of such beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such withholding tax, backup withholding tax or similar charge (other than a
withholding tax, backup withholding tax or similar charge that (i) is the result
of a certification, information or other reporting requirement described in the
third parenthetical clause of the first sentence of the preceding paragraph or
(ii) is imposed as a result of presentation of any such Affected Security or
such coupon for payment more than 10 days after the date on which such payment
becomes due and payable or on which payment thereof was duly provided for,
whichever occurs later), will not be less than the amount provided in such
Affected Security or such coupon to be then due and payable. In the event the
Company elects to pay such additional amounts, (the Company's election to
exercise such right to be evidenced by prompt notice to the Trustee for the
Securities of the appropriate series), the Company will have the right, at its
sole option, at any time, to redeem the Affected Securities of such series as a
whole, but not in part, at the Redemption Price, subject to the provisions of
the last four sentences of the immediately preceding paragraph. If the Company
has made the determination described in the preceding paragraph with respect to
certification, information or other reporting requirements applicable only to
interest and subsequently makes a determination in the manner and of the nature
referred to in such preceding paragraph with respect to such requirements
applicable to principal, the Company will redeem the Affected Securities of such
series in the manner and on the terms described in the preceding paragraph
unless the Company elects to have the provisions of this paragraph apply rather
than the provisions of the immediately preceding paragraph. If in such
circumstances the Affected Securities of such series are to be redeemed, the
Company shall have no obligation to pay additional amounts pursuant to this
paragraph with respect to principal (or premium, if any) or interest accrued and
unpaid after the date of the notice of such determination indicating such
redemption, but will be obligated to pay such additional amounts with respect to
interest accrued and unpaid to the date of such determination. If the Company
elects to pay additional amounts pursuant to this paragraph and the condition
specified in the first sentence of this paragraph should no longer be satisfied,
then the Company shall promptly redeem the Affected Securities of such series in
whole, but not in part, at the Redemption Price subject to the provisions of the
last four sentences of the immediately preceding paragraph. If the Company
elects to, or is required to, redeem the Affected Securities of such series
pursuant to this paragraph, it shall publish in the manner and to the extent
provided in Section 106 prompt notice thereof. If the Affected Securities of
such series are to be redeemed pursuant to this paragraph, the redemption shall
take place on such date, not later than one year after publication of the notice
of redemption, as the Company shall specify by notice to the Trustee for such
series of Securities at least 60 days prior to the Redemption Date. Any
redemption payments made by the Company pursuant to this paragraph shall be
subject to the continuing obligation of the Company to pay additional amounts
pursuant to this paragraph.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of This Article.
Redemption of Securities through operation of a sinking fund as permitted or
required by any form of Security issued pursuant to this Indenture shall be made
in accordance with such form of Security and this Article; provided, however,
that if any provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security shall govern.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any particular series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum
71
amount provided for by the terms of Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by
the terms of Securities of any particular series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
particular series as provided for by the terms of Securities of that series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided, however, that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee for such Securities at the principal amount thereof and the amount
of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
particular series of Securities, the Company will deliver to the Trustee for the
Securities of such series an Officers' Certificate specifying the amount of the
next ensuing mandatory 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 currency unit in which the Securities of that
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of that series and except as provided in Sections 311(b), 311(d)
and 311(e)) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202 and
shall state the basis for such credit and that such Securities have not
previously been so credited and will also deliver to such Trustee any Securities
to be so delivered. Such Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer Securities,
may at any time call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1301, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, or in London, as such Trustee
shall
72
determine. Notice of every meeting of Holders of Securities of such 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, in the manner
provided in Section 106, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
such series shall have requested the Trustee for any such series to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1301, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and such Trustee shall not have made the
first publication of the notice of such meeting within 30 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London, for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series,
a Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee for such series and its counsel and any representatives of the Company
and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly that Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the Holders of a majority in
principal amount of the Outstanding Securities of that series; provided,
however, that except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage which is less than a
majority in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal aount of the Outstanding Securities of that
series.
73
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee for
any series of Securities that includes Bearer Securities may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
Securities of such series in regard to proof of the holding of 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. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer Securities
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
Securities as provided in Section 1302(b), in which case the Company or the
Holders of Securities of the series 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 vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him as determined in accordance with Section 115;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any 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, except as a Holder of a Security of such series or proxy.
(d) Any meeting of holders of Securities of any series duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series 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 triplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting 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 given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and
74
secretary of the meeting and one such copy shall be delivered to the Company,
and another to the Trustee for such series of Securities to be preserved by such
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
* * *
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated as of
December 2, 1996 to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the first day of December 2, 1996.
▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.
[SEAL]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Vice President and Treasurer
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Assistant Secretary
THE CHASE MANHATTAN BANK,
Trustee
[SEAL]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Vice President
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Trust Officer
75
EXHIBIT A
---------
[FORM OF CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CEDEL, S.A. BY A
BENEFICIAL OWNER OF SECURITIES, IN ORDER TO
RECEIVE A DEFINITIVE BEARER SECURITY IN EXCHANGE
FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO
EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY
FOR AN INTEREST IN A PERMANENT GLOBAL SECURITY]
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 2, 1996
(the "Indenture") between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. (the "Company") and The
Chase Manhattan Bank, as Trustee. Terms used herein unless otherwise defined
shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in
the fourth paragraph hereof]*, $___________________principal amount of the
above-captioned Securities represented by a temporary global Security (the
"temporary global Security") held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as
defined below);
(ii) owned by United States person(s) that are (a) foreign branches of
United States financial institutions (as defined in United States Treasury
Regulation Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing
for their own account or for resale, or (b) United States person(s) who
acquired the beneficial interest in the temporary global Security through
foreign branches of United States financial institutions and who hold the
beneficial interest in the temporary global Security 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, for the
benefit of the Company, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during
the restricted period (as defined in United States Treasury Regulation
Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s)
described in this clause (iii) (whether or not also described in clause (i)
or (ii)), further certify that they have not acquired the beneficial interest
in the temporary global Security for the purpose of resale directly or
indirectly to a United States person or to a person within the United States.
"United States person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States and an estate or trust the income of which is subject
to United States federal income taxation regardless of its source, and "United
States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction (including the Commonwealth of Puerto Rico).
[This certificate excepts and does not relate to $_________ principal
amount of the temporary global Security 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 Security for [definitive Bearer
Securities] [interests in a permanent global Security] cannot be made until we
are able to provide a certificate in this form.]*
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 above-captioned
Securities held by you for our account 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.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
-------------------------
[Name of Person Making Certification]
By:
-----------------------------------
----------------------------------
* Delete if inappropriate.
A-2
EXHIBIT B
---------
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE
TRUSTEE BY EUROCLEAR OR CEDEL, S.A. REGARDING THE EXCHANGE
OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE SECURITIES OR
FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 2, 1996
(the "Indenture") between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. (the "Company") and The
Chase Manhattan Bank, as Trustee. Terms used herein unless otherwise defined
shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary global Security in respect of the
above-captioned Securities which is herewith submitted to be exchanged for
[definitive Bearer Securities] [interests in a permanent global Security] (the
"Submitted Portion") as provided in the Prospectus Supplement dated [insert date
of Prospectus Supplement] in respect of such issue. This is to certify that (i)
we have received in writing or by tested telex or electronically (in accordance
with the requirements of United States Treasury Regulation Section 1.163-
5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire
Submitted Portion, substantially in the form of Exhibit A to the Indenture, and
(ii) the Submitted Portion includes no part of the temporary global Security
excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States of America. 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.
Submitted Portion:
U.S. $
-------------------------
Dated:
------------------------
[▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office, as operator of the
Euroclear System]*
[CEDEL, S.A.]*
By:
-------------------------------------
---------------------------------
* Delete if inappropriate.
B-1
EXHIBIT C
---------
[FORM OF CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CEDEL, S.A. BY A
BENEFICIAL OWNER OF SECURITIES, IN ORDER TO
RECEIVE PAYMENT ON A TEMPORARY GLOBAL SECURITY]
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 2, 1996
(the "Indenture") between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. (the "Company") and The
Chase Manhattan Bank, as Trustee. Terms used herein unless otherwise defined
shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in
the fourth paragraph hereof]*, $___________________principal amount of the
above-captioned Securities represented by a temporary global Security (the
"temporary global Security") held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as
defined below);
(ii) owned by United States person(s) that are (a) foreign branches of
United States financial institutions (as defined in United States Treasury
Regulation Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing
for their own account or for resale, or (b) United States person(s) who
acquired the beneficial interest in the temporary global Security through
foreign branches of United States financial institutions and who hold the
beneficial interest in the temporary global Security 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, for the
benefit of the Company, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during
the restricted period (as defined in United States Treasury Regulation
Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s)
described in this clause (iii) (whether or not also described in clause (i)
or (ii)), further certify that they have not acquired the beneficial interest
in the temporary global Security for the purpose of resale directly or
indirectly to a United States person or to a person within the United States.
"United States person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States and an estate or trust the income of which is subject
to United States federal income taxation regardless of its source, and "United
States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction (including the Commonwealth of Puerto Rico).
[This certificate excepts and does not relate to $_________ principal
amount of the temporary global Security held by you for our account as to which
we are not able to provide a certificate in this form. We understand that
payments, if any, due with respect to such portion of the temporary global
Security cannot be made until we are able to provide a certificate in this
form.]*
C-1
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 above-captioned
Securities held by you for our account 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.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
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[Name of Person Making Certification]
By:
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* Delete if inappropriate.
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EXHIBIT D
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[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE
TRUSTEE BY EUROCLEAR OR CEDEL, S.A. REGARDING PAYMENT
ON A TEMPORARY GLOBAL SECURITY]
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 2, 1996
(the "Indenture") between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. (the "Company") and The
Chase Manhattan Bank, as Trustee. Terms used herein unless otherwise defined
shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary global Security in respect of the
above-captioned Securities for which we hereby request that you make payment to
us of the amounts payable on the relevant payment date (the "Submitted Portion")
as provided in the Prospectus Supplement dated [insert date of Prospectus
Supplement] in respect of such issue. This is to certify that (i) we have
received in writing or by tested telex or electronically (in accordance with the
requirements of United States Treasury Regulation Section 1.163-
5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire
Submitted Portion, substantially in the form of Exhibit C to the Indenture, and
(ii) the Submitted Portion includes no part of the temporary global Security
excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain
tax laws and regulations in the United States of America. 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.
Submitted Portion:
U.S. $
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Dated:
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[▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System]*
[CEDEL, S.A.]*
By:
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* Delete if inappropriate.
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