EXHIBIT 4-G
-----------
FORM OF DEBT SECURITIES INDENTURE
AMONG PACIFIC TELESIS GROUP AND
FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE
1
___________________________________________________________________________
PACIFIC TELESIS GROUP
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
_________________________________
Indenture
Dated as of _____________, 1995
_________________________________
___________________________________________________________________________
2
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of 1939, Section of
as amended Indenture
------------------- ------------
310(a)...................................................... 607
310(b)...................................................... 608
310(c)...................................................... Inapplicable
311(a)...................................................... 612
311(b)...................................................... 612
311(c)...................................................... Inapplicable
312(a)...................................................... 701
312(b)...................................................... 702
312(c)...................................................... 702
313(a)...................................................... 703
313(b)(1) .................................................. Inapplicable
313(b)(2) .................................................. 703
313(c)...................................................... 703
313(d)...................................................... 703
314(a)(1)................................................... 704 (1)
314(a)(2)................................................... 704 (2)
314(a)(3)................................................... 704 (3)
314(a)(4)................................................... 704 (4)
314(b)...................................................... Inapplicable
314(c)...................................................... 102
314(d)...................................................... Inapplicable
314(e)...................................................... 102
314(f)...................................................... Inapplicable
315(a)...................................................... 602
315(b)...................................................... 601
315(c)...................................................... 601
315(d)...................................................... 601
315(e)...................................................... 515
316(a)...................................................... 512
316(b)...................................................... 508
316(c)...................................................... 104(e)
317(a)...................................................... 503, 504
317(b)...................................................... 1003
318(a)...................................................... 113
318(b)...................................................... Inapplicable
318(c)...................................................... 113
____________________
* This Cross-Reference Table does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
3
TABLE OF CONTENTS*
Page
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PARTIES
RECITALS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..................................
Act
Additional Amounts
Affiliate
Authenticating Agent
Authorized Newspaper
Bearer Security
Board of Directors
Board Resolution
Business Day
CEDEL S.A.
Commission
Common Depositary
Common Securities
Common Securities Guarantee
Company
Company Request or Company Order
Conversion Date
Conversion Event
Corporate Trust Office
corporation
coupon
Currency
Declaration
Default
Defaulted Interest
Dollar or $
Dollar Equivalent of the Currency Unit
Dollar Equivalent of the Foreign Currency
ECU
Election Date
Euroclear
European Communities
____________________
* This Table of Contents does not constitute part of the Indenture and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
4
TABLE OF CONTENTS*
(CONT'D)
Page
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European Monetary System
Event of Default
Exchange Date
Exchange Rate Agent
Exchange Rate Officer's Certificate
Federal Bankruptcy Code
Foreign Currency
Government Obligations
Holder
Indenture
Indexed Security
Interest Payment Date
Market Exchange Rate
Maturity
Officers' Certificate
Opinion of Counsel
Original Issue Discount Security
Outstanding
Pacific Telesis Trust
Paying Agent
Person
Place of Payment
Predecessor Security
Preferred Securities
Preferred Securities Guarantee
Redemption Date
Redemption Price
Registered Security
Regular Record Date
Repayment Date
Responsible Officer
Securities
Security Register and Security Registrar
Special Record Date
Stated Maturity
Subsidiary
Trust Indenture Act or TIA
Trust Securities
Trust Securities Guarantees
Trustee
United States
United States person
Valuation Date
Vice President
Voting Stock
Yield to Maturity
SECTION 102. Compliance Certificates and Opinions..................
SECTION 103. Form of Documents Delivered to Trustee................
SECTION 104. Acts of Holders.......................................
5
TABLE OF CONTENTS*
(CONT'D)
Page
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SECTION 105. Notices, etc. to Trustee and Company..................
SECTION 106. Notice to Holders; Waiver.............................
SECTION 107. Effect of Headings and Table of Contents..............
SECTION 108. Successors and Assigns................................
SECTION 109. Separability Clause...................................
SECTION 110. Benefits of Indenture.................................
SECTION 111. Governing Law.........................................
SECTION 112. Legal Holidays........................................
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.......................................
SECTION 202. Form of Trustee's Certificate of Authentication.......
SECTION 203. Securities Issuable in Global Form....................
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..................
SECTION 302. Denominations.........................................
SECTION 303. Execution, Authentication, Delivery and Dating........
SECTION 304. Temporary Securities..................................
SECTION 305. Registration of Transfer and Exchange.................
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset..........................
SECTION 308. Persons Deemed Owners.................................
SECTION 309. Cancellation..........................................
SECTION 310. Computation of Interest...............................
SECTION 311. Currency and Manner of Payments in Respect of
Securities.......................................
SECTION 312. Appointment and Resignation of Successor Exchange
Rate Agent.......................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................
SECTION 402. Application of Trust Money.............................
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 501. Events of Default......................................
SECTION 502. Acceleration of Maturity; Rescission and Annulment.....
SECTION 503. Collection of Indebtedness and Suits for Enforcemnt
by Trustee........................................
SECTION 504. Trustee May File Proofs of Claim.......................
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................
SECTION 506. Application of Money Collected.........................
SECTION 507. Limitation on Suits ...................................
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................
SECTION 509. Restoration of Rights and Remedies.....................
SECTION 510. Rights and Remedies Cumulative.........................
SECTION 511. Delay or Omission Not Waiver...........................
SECTION 512. Control by Holders.....................................
SECTION 513. Waiver of Past Defaults ...............................
SECTION 514. Waiver of Stay or Extension Laws.......................
SECTION 515. Undertaking for Costs..................................
6
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.....................................
SECTION 602. Certain Rights of Trustee. Subject to the provisions
of TIA Sections 315(a) through 315(d).............
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities........................................
SECTION 604. May Hold Securities ...................................
SECTION 605. Money Held in Trust ...................................
SECTION 606. Compensation and Reimbursement.........................
SECTION 607. Corporate Trustee Required; Eligibility................
SECTION 608. Resignation and Removal; Appointment of
Successor.........................................
SECTION 609. Acceptance of Appointment by Successor.................
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business .........................................
SECTION 611. Appointment of Authenticating Agent....................
SECTION 612. Preferential Collection of Claims Against Company......
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Information As to Names
and Addresses of Holders of Securities............
SECTION 702 Preservation of Information; Communication to Holders
of Securities.....................................
SECTION 703. Reports by Trustee.....................................
SECTION 704. Reports by Company.....................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms............................................
SECTION 802. Successor Person Substituted..........................
SECTION 803. Assignment of Rights..................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...
SECTION 902. Supplemental Indentures with Consent of Holders......
SECTION 903. Execution of Supplemental Indentures.................
SECTION 904. Effect of Supplemental Indentures....................
SECTION 905. Conformity with Trust Indenture Act..................
SECTION 906. Reference in Securities to Supplemental Indentures...
SECTION 907. Notice of Supplemental Indentures....................
7
TABLE OF CONTENTS*
(CONT'D)
ARTICLE TEN
COVENANTS
Page
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SECTION 1001. Payment of Principal, Premium, if any, and Interest..
SECTION 1002. Maintenance of Office or Agency .....................
SECTION 1003. Money for Securities Payments to Be Held in Trust....
SECTION 1004. Statement as to Compliance...........................
SECTION 1005. Additional Amounts...................................
SECTION 1006. Limitation on Dividends..............................
SECTION 1007. Covenants as to Pacific Telesis Trusts...............
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.............................
SECTION 1102. Election to Redeem; Notice to Trustee................
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....
SECTION 1104. Notice of Redemption.................................
SECTION 1105. Deposit of Redemption Price .........................
SECTION 1106. Securities Payable on Redemption Date................
ECTION 1107. Securities Redeemed in Part..........................
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.............................
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities......................................
SECTION 1203. Redemption of Securities for Sinking Fund............
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article............................
SECTION 1302. Repayment of Securities ............................
SECTION 1303. Exercise of Option..................................
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable .............................
SECTION 1305. Securities Repaid in Part ..........................
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Discharge of Liability on Outstanding
Securities of any Series............................
Section 1402. Discharge of Certain Covenants and Other
Obligations.........................................
Section 1403. Discharge of Certain Obligations Upon Deposit of
Money or Government Obligations with Trustee........
Section 1404. Unclaimed Moneys......................................
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called...........
SECTION 1502. Call, Notice and Place of Meetings..................
SECTION 1503. Persons Entitled to Vote at Meetings................
SECTION 1504. Quorum; Action......................................
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................
SECTION 1506. Counting Votes and Recording Action of Meetings.....
8
INDENTURE, dated as of ______________, 1995, between Pacific Telesis
Group, a corporation duly organized and existing under the laws of the State
of Nevada (herein called the "Company") having its principal office at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and The First National Bank of
Chicago, a national banking association duly organized and existing under
the laws of the United States, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities"),
to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating paper",
as used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder (as defined below), has the
meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"Affiliate" of any specified Person (as defined below) 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" of any specified Person means possession of the
power to direct or cause the direction of 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.
9
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers,
such publications may be made in the same or in different newspapers in the
same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security except a Registered Security (as
defined below).
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day", when used with respect to any Place of Payment (as defined
below) or any other particular location referred to in this Indenture or in
the Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law or
regulation to close.
"CEDEL S.A." means Cedel, S.A., or its successor.
"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 Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Common Securities" means undivided beneficial interests in the assets of a
Pacific Telesis Trust which rank pari passu with Preferred Securities (as
defined below) issued by such Pacific Telesis Trust (as defined below);
provided, however, that upon the occurrence of an Event of Default (as
defined below), the rights of Holders of Common Securities to payment in
respect to distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of Holders of Preferred Securities.
"Common Securities Guarantee" means any Guarantee that the Company enters
into that operates directly or indirectly for the benefit of holders of
Common Securities of such Pacific Telesis Trust.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman, its President, any Executive
Vice President, any Vice President, its Chief Financial Officer, its
Controller, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Conversion Date" has the meaning specified in Section 311(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency (as
defined below) both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions, (ii) the
ECU both within the European Monetary System (as defined below) and for the
settlement of transactions by public institutions of or within the European
Communities (as defined below) or (iii) any currency unit (or composite
currency) other than the ECU for the purposes for which it was established.
10
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which office on the date of execution of this Indenture is
located at The First National Bank of Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which,
at any particular time, its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the ECU, issued by
the government of one or more countries or by any recognized confederation
or association of such governments.
"Declaration" means, in respect of a Pacific Telesis Trust, the declaration
of trust (or, if applicable, the most recent amended and restated version
thereof) of such Pacific Telesis Trust or any other governing instrument of
such Pacific Telesis Trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"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).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 311(h).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established by
the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" with respect to Securities of any series shall mean any
event specified in Section 501 and any other event as may be established
with respect to the Securities of such series pursuant to Section 301.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 312.
"Exchange Rate Officer's Certificate" means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate (as defined below) and
(ii) the Dollar or Foreign Currency 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), payable with respect
to a Security of any series on the basis of such Market Exchange Rate, sent
(in the case of a telex) or signed (in the case of a certificate) by the
Chief Financial Officer, any Executive Vice President, the Treasurer, any
Vice President or any Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the United
States Code, as amended from time to time.
11
"Foreign Currency" means any Currency other than the Currency of the United
States.
"Government Obligations" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, securities which are (i)
direct obligations of the government which issued the Currency in which the
Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the government which issued the Currency in which the
Securities of such series are payable, 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" 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, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and 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 particular series of Securities
established as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate
solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of
any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity (as defined below) may
be more or less than the principal face amount thereof at original issuance.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, (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
Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Exchange Rate 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 another principal market for
the Currency in question, or such other quotations as the Exchange Rate
Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used
in respect of such Currency shall be that upon which a non-resident issuer
of securities designated in such Currency would purchase such Currency in
12
order to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption, notice of option to
elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, the
President, an Executive Vice President or a Vice President, and by the Chief
Financial Officer, the Controller, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 102, if and to the extent required by the provisions of such
Section.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
counsel for the Company, including an employee of the Company.
"Original Issue Discount Security" means (a) any Security which provides for
an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
502 or (b) any other Security which for United States federal income tax
purposes would be considered an Original Issue Discount Security.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered
under this Indenture except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
moneys in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (as defined below) (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required
by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that
would be (or shall have been declared to be) due and payable, at
the time of such determination, upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, (ii) the
principal amount of any Security denominated in a Foreign Currency
that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such
Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of
the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause
(i) above), of such Security, (iii) the principal amount of any
13
Indexed Security that may be counted in making such determination
or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv)
Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor.
"Pacific Telesis Trust" means each of Pacific Telesis Financing I, Pacific
Telesis Financing II and Pacific Telesis Financing III, each, a Delaware
statutory business trust.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if
any, on) or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or a
government or any agency, authority or political subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of or
within any series, the place or places where the principal of (and premium,
if any, on) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or 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, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupon appertains, as the case may be.
"Preferred Securities" means undivided beneficial interests in the assets of
a Pacific Telesis Trust which rank pari passu with Common Securities issued
by such Pacific Telesis Trust, provided, however that upon the occurrence of
an Event of Default, the rights of Holders of Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of Holders of Preferred Securities.
"Preferred Securities Guarantee" means any Guarantee that the Company may
enter into with The First National Bank of Chicago, as Trustee or other
Persons that operate directly or indirectly for the benefit of Holders of
Preferred Securities of such Pacific Telesis Trust.
"Redemption Date", when used with respect to any Security to be redeemed, in
whole or in part, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment pursuant to
this Indenture.
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"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, or any vice president,
secretary, any assistant secretary, treasurer, any assistant treasurer,
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller within the corporate
trust administration division or any other officer of the 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" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities without regard to series
authenticated and delivered under this Indenture; provided, however, that if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended
pursuant to the provisions of any Indenture Supplemental hereto.
"Subsidiary" means any corporation of which at the time of determination the
Company, directly and/or indirectly through one or more Subsidiaries, owns
more than 50% of the shares of Voting Stock (as defined below).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trust Securities" means Common Securities and Preferred Securities.
"Trust Securities Guarantees" means the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder; provided,
however, that if at any time there is more than one such Person, "Trustee"
as used with respect to the Securities of any series shall mean only the
Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (including
the states and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 311(c).
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
15
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board
of directors, managers or trustees of a corporation (irrespective of whether
or not at the time stock of any other class or classes shall have or might
have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance
with which constitutes a condition precedent) 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 which relate, or to
the extent they relate, to matters of law, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section
1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representations with respect to accounting
matters upon which his or her certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate or opinion of any firm of
independent public accountants filed with the Trustee shall contain a
statement that such firm is independent.
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 matters of law, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows that
the certificate or opinion or representations with respect to the matters
upon which his certificate 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
16
to such factual matters is in the possession of the Company, unless such
counsel knows 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 of the Outstanding Securities of all series or
one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed
in writing. Alternatively, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of such series may
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 Fifteen, 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 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 conclusive in favor of the Trustee and 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 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which
the Trustee reasonably deems sufficient.
(c) 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.
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(d) 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
reasonably deemed by the Trustee 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 reasonably deemed by the Trustee to be
satisfactory. The Trustee 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, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (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 Trustee reasonably deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by
or pursuant to a Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date thirty (30) days
prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities shall be computed
as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Security.
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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 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 the Trustee at its Corporate Trust Office,
Attention: [Corporate Trust Administration Division,] or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at
any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such 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. 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 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. Any notice mailed to a Holder in
the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be sufficient giving of such notice for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and in such
other city or cities as may be specified in such Securities on a Business
Day at least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the
date of the first such publication.
In case by reason of the suspension of publication 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 given with the approval of the Trustee 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 such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the
country of publication.
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
19
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. 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 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon 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 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities 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 111. Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939,
AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE
EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or Maturity; provided that no
interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Stated Maturity or Maturity, as the case may be. In
the event that such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day.
SECTION 113. Trust Indenture Act Controls.
If any provision of the Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer Securities,
if any, of each series and related coupons shall be in substantially the
forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
20
Securities or coupons. If the forms of Securities or coupons of any series
are established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301, Securities in
bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be in
substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Securities,
as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be
in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago as Trustee
By:_______________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (10)
of Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of Outstanding Securities of such
series from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to
time be increased or decreased 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 in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or Section 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified as
contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the
Person or Persons specified therein.
21
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL S.A.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth in, or determined in the manner provided in, an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any and all terms and provisions
thereof, including, without limitation, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1),
(2) and (19) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series and set forth
in such Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306,
906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, and the right, if any, to extend such
date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest
Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated
if other than on the basis of a 360-day year of twelve 30-day
months;
(5) the rights, if any, to defer payments of interest on the
Securities by extending the times for the payment of interest and
the terms and duration of such extension;
(6) the terms of subordination applicable to the Securities of the
series;
(7) the place or places, if any, other than or in addition to The City
of New York, where the principal of (and premium, if any, on) and
any interest on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be
surrendered for exchange and, if different than the location
specified in Section 105, the place or places where notices or
demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which,
22
the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, the
Currency in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(10) if other than denominations of $25 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(11) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the method by which such portion shall be
determined;
(13) if other than Dollars, the Currency in which payment of the
principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to
or in lieu of any of the provisions of Section 311;
(14) whether the amount of payments of principal of (and premium, if
any, on) or interest on the Securities of the series may be
determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation,
on one or more Currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be
determined;
(15) whether the principal of (and premium, if any, on) and interest,
if any, on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a Currency other
than that in which such Securities are denominated or stated to be
payable, 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 in which such Securities are
denominated or stated to be payable and the Currency in which such
Securities are to be so payable, in each case in accordance with,
in addition to or in lieu of any of the provisions of Section 311;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) any provisions in modification of, in addition to or in lieu of
the provisions of Article Fourteen that shall be applicable to the
Securities of the series;
(18) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may
be specified;
23
(19) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth
herein;
(20) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange
such interests for Securities of such series and of like tenor of
any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner
provided in Section 305, whether Registered Securities of the
series may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations), whether Bearer
Securities of the series may be exchanged for Registered
Securities of the series, and the circumstances under which and
the place or places where such exchanges may be made and if
Securities of the series are to be issuable in global form, the
identity of any initial depository therefor; provided, that,
unless otherwise provided, Securities shall be issued as
Registered Securities;
(21) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(22) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than 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, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, 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 304;
(23) if Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, the form
and/or terms of such certificates, documents or conditions;
(24) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term)
in respect of any tax, assessment or governmental charge and, if
so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms
of any such option);
(25) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will
be so convertible or exchangeable; and
(26) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of
the Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
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indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, a copy of an appropriate record of such
action(s) shall be certified by the Secretary or an Assistant Secretary of
the Company and such Board Resolutions shall be delivered to the Trustee at
or prior to the delivery of the Officers' Certificate setting forth the
terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall
be issuable in denominations of $25 and any integral multiple thereof and
the Bearer Securities of such series, other than the Bearer Securities
issued in global form (which may be of any denomination), shall be issuable
in denominations of $5,000 or any integral multiple threof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by its Chairman, its President, its Chief Financial
Officer, an Executive Vice President, its Treasurer or a Vice President,
under its corporate seal reproduced thereon attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the
Securities or coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or 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 or
coupons.
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 coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and
provided, further, that, unless otherwise specified with respect to any
series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate
in such forms and on such terms as may be established pursuant to Section
301. If any Security shall be represented by a permanent global Bearer
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 its original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured
have been detached and canceled. If not all the Securities of any series
are to be issued at one time and if the Board Resolution, Officers'
Certificate or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining terms of
particular Securities of such series such as interest rate, maturity date,
date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of
Counsel to the effect:
25
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of 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 and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities and any coupons and
the execution and delivery of the supplemental indenture, if any,
by the Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities
and any coupons, and has duly taken all necessary corporate action
with respect to such issuance; and
26
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company
or result in any violation of any of the terms or provisions of
any law or regulation or of any indenture, mortgage or other
agreement known to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to the preceding two paragraphs prior
to or at the time of issuance of each Security, but such documents shall be
delivered prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication, and
each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon 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 duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities 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 conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series, upon surrender of the temporary securities of
such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security only in compliance with the conditions set
forth in Section 303. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
27
Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euroclear and CEDEL S.A., for
credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
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 Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or
after the Exchange Date such temporary global Security shall be surrendered
by the Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary global Security, upon
such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary global Security
held for its account then to be exchanged 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, each in such form as may be established pursuant to Section 301;
and provided, further, that definitive Bearer Securities shall be delivered
in exchange for a portion of a temporary global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and
of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL S.A., as the case may be, to request such exchange on his
behalf and delivers to Euroclear or CEDEL S.A., as the case may be, a
certificate in such form as may be established pursuant to Section 301,
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL S.A.,
the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary 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
Euroclear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall
be delivered only outside the United States.
Until exchanged in full 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 of like tenor
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date upon delivery by
Euroclear and CEDEL S.A. to the Trustee of a certificate or certificates in
such form as may be established pursuant to Section 301, for credit without
further interest on or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of such temporary
global Security on such Interest Payment Date and who have each delivered to
Euroclear or CEDEL S.A., as the case may be, a certificate dated no earlier
than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in such form as may be established pursuant to Section 301.
28
Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section
and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal or
interest owing with respect to a beneficial interest in a temporary global
Security will be made unless and until such interest in such temporary
global Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and CEDEL S.A. and not paid
as herein provided shall be returned to the Trustee immediately prior to the
expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
SECTION 305. Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (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 Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as security registrar (the "Security Registrar") for the
purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office of the Security Registrar for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver,
the Registered Securities which the Holder making the exchange is entitled
to receive. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be
issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable Board
Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series
of any authorized denomination and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, 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, any such permitted exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in
an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such 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 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 a permitted exchange
for a Registered Security of the same series and like tenor after the close
29
of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date
for payment, as the case may be, 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 shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated
by Section 301, any permanent global Security shall be exchangeable only as
provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section
301 and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged,
such permanent global Security shall be surrendered by the Common Depositary
or such other depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver,
in exchange for each portion of such permanent global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of 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
specified 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 no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may
be among those selected for redemption; and provided, further, that no
Bearer Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, 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 such Registered
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
30
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, 1107 or 1305 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 selection for redemption of
Securities of that series under Section 1103 or 1203 and ending at the close
of business on (A) if Securities of the series are issuable only as
Registered Securities, the date of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the date 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 in 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 that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, or, in case any
such mutilated 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, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall execute and
upon Company Order the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
for which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains, or, in
case any such 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, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon.
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 government
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) 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 a Security to which a 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
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of that 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; Optional
Interest Reset.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located in
the United States.
Unless otherwise provided as contemplated by Section 301 with respect to the
Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security in bearer form will provide that interest, if any, payable
on any Interest Payment Date will be paid to each of Euroclear and CEDEL
S.A. with respect to that portion of such permanent global Security held for
its account by the Common Depositary, for the purpose of permitting each of
Euroclear and CEDEL S.A. to 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 series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the
extent lawful) at the rate specified in the Securities of such series (such
defaulted interest and, if applicable, interest thereon herein collectively
called "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 such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
in the Currency 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, if applicable, 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 the Trustee for such deposit on or
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given
in the manner provided in Section 106, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
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Defaulted Interest and the Special Record Date therefor having been
so given, such Defaulted Interest shall be paid to the Persons in
whose name the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be reasonably deemed practicable by the
Trustee.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any, on) and (subject to
Sections 305 and 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the 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 and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such 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 coupons be overdue, and none of
the Company, the Trustee or any agent of the Company or the 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 Security in global form or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company
or the Trustee, from giving effect to any written certification, proxy or
other authorization furnished by any depositary, as a Holder, with respect
to such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment at
the option of the Holder, registration of transfer or exchange or for credit
against any current or future sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee. All
Securities and coupons so delivered to the Trustee shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee)
for cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee
shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company
unless by Company Order the Company shall direct that canceled Securities be
33
returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect to
any Securities, interest, if any, 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, on) and interest, if any, on any Registered
or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may
be, is payable. The provisions of this Section 311 may be
modified or superseded with respect to any Securities pursuant to
Section 301.
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(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, on) or interest, if
any, on such Registered Securities in any of the Currencies which
may be designated for such election by delivering to the Trustee a
written election with signature guarantees and in the applicable
form established pursuant to Section 301, not later than the close
of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by
such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of
business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such
payment date and no such change 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
with respect to which the Company has deposited funds pursuant to
Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee).
Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee 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
as provided in Section 311(a). The Trustee shall notify the
Exchange Rate 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) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant
to Section 301, not later than the fourth Business Day after the
Election Date for each payment date for Registered Securities of
any series, the Exchange Rate Agent will deliver to the Company a
written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any, on) and interest, if
any, on the Registered Securities to be paid on such payment date,
specifying the amounts in such Currency so payable in respect of
the Registered Securities as to which the Holders of Registered
Securities of such series shall have elected to be paid in another
Currency 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, unless otherwise specified pursuant to Section 301, 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 Officer's Certificate in respect of the Dollar or
Foreign Currency payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business
Day (the "Valuation Date") immediately preceding each payment date
and such determination shall be conclusive and binding for all
purposes, absent manifest error.
35
(d) If a Conversion Event occurs with respect to a Foreign Currency 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, on) and interest, if any, on the
applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign
Currency was used (the "Conversion Date"), the Dollar shall be the
Currency of payment for use on each such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency
other than a currency unit, 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 Exchange
Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph
(b) above, and a Conversion Event occurs with respect to such
elected Currency, such Holder shall receive payment in the
Currency in which payment would have been made in the absence of
such election; and if a Conversion Event occurs with respect to
the Currency in which payment would have been made in the absence
of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for
each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the
Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate 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 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, having an aggregate Dollar Equivalent
value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent value of the
Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division and
such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If,
36
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 clause (13) of
Section 301 by which the written election referred to in
paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate 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 and all Holders of such Securities denominated
or payable in the relevant Currency. The Exchange Rate Agent shall promptly
give written notice to the Company and the Trustee of any such decision or
determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the
manner provided for in Section 106 to the affected Holders) specifying the
Conversion Date. In the event the Company so determines that a Conversion
Event has occurred with respect to the ECU or any other currency unit in
which Securities are denominated or payable, the Company will immediately
give written notice thereof to the Trustee and to the Exchange Rate Agent
(and the Trustee will promptly thereafter give notice in the manner provided
for in Section 106 to the affected Holders) specifying the Conversion Date
and the Specified Amount of each Component Currency on the Conversion Date.
In the event the Company determines in good faith that any subsequent change
in any Component Currency as set forth in the definition of Specified Amount
above has occurred, the Company will similarly give written notice to the
Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange Rate Agent
and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 312. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, 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
this Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the
time and in the manner specified pursuant to Section 301 for the
purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued Currency into
the applicable payment Currency for the payment of principal (and
premium, if any) and interest, if any, pursuant to Section 311.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument
delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
the Exchange Rate Agent for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a
37
Board Resolution, shall promptly appoint a successor Exchange Rate
Agent or Exchange Rate Agents with respect to the Securities of
that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 301, at any time there
shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated
and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange
of Securities of such series herein expressly provided for and the
obligation of the Company to pay any Additional Amounts as contemplated by
Section 1005) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series 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 ▇▇▇▇▇▇▇ ▇▇▇, (▇▇) 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 has been
waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in the Currency
in which the Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
38
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations
of the Trustee to any Authenticating Agent under Section 611 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a
period of 90 days; provided however, that an extension of one or
more Interest Payment Dates by the Company in accordance with the
terms of any indenture supplemental hereto, shall not constitute a
default in the payment of interest; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; provided,
however, that a valid extension of the Maturity of the principal
or premium, if any, of such Securities in accordance with the
terms of any indenture supplemental hereto shall not constitute a
default in the payment of principal or premium, if any; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of the Securities of that series and Article 12;
or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture which affects or is
applicable to the Securities of that series (other than a default
in the performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in this Section or which has
expressly been included in this Indenture solely for the benefit
of one or more series of Securities other than that series), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of all Outstanding
Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
39
Company under the Federal Bankruptcy Code or any other applicable
federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(6) in the event Securities are issued and sold to a Pacific Telesis
Trust or a trustee of such trust in connection with the issuance
of Trust Securities by such Pacific Telesis Trust, such Pacific
Telesis Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except
in connection with (i) the distribution of Securities to Holders
of Trust Securities in liquidation or redemption of their
interests in such Pacific Telesis Trust, (ii) the redemption of
all of the Outstanding Trust Securities of such Pacific Telesis
Trust or (iii) certain mergers, consolidations or amalgamations,
each as permitted by the Declaration of such Pacific Telesis
Trust.
(7) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by
it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due; or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in Section 501 with respect to Securities
of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified portion thereof)
shall become immediately due and payable.
At any time after a declaration of acceleration with respect to Securities
of any series (or of all series, as the case may be) has been made and
before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series
(or of all series, as the case may be), by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency 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, if
applicable, as provided in Sections 311(b), 311(d) and 311(e)),
(A) all overdue interest on all Outstanding Securities of that
series (or of all series, as the case may be) and any related
coupons,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as
the case may be) which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
40
(C) interest on overdue interest at the rate or rates prescribed
therefore in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment
of amounts of principal of (or premium, if any, on) or interest on
Securities of that series (or of all series, as the case may be)
which have become due solely by such declaration of 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 installment of interest on
any Security of any series and any related coupon as and when such
interest becomes due and payable and which payment has not been
extended in accordance with the provision of any indenture
supplemental hereto, and such default continues for a period of 90
days, or
(2) default is made in the payment of all or any part of the principal
of (or premium, if any, on) any of the Securities of any series
when the same shall have become due and payable and which payment
has not been extended in accordance with the terms of any
indenture supplemental hereto, whether at the Stated Maturity of
such series or by any call for redemption or by declaration of
acceleration or otherwise or
(3) default is made in the satisfaction of any sinking fund obligation
when and as such obligation becomes due and payable and which
payment has not been extended in accordance with the terms of any
indenture supplemental hereto,
then the Company will, upon demand of the Trustee, pay to the Trustee 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, and interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be)
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
41
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal,
premium, if any, 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 (and
premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Securities or Indexed Securities
as may be specified in the terms of such series, and interest
owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities or coupons, 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 the Trustee under Section
606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the
Securities and coupons 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, respectively; and
Third: The balance, if any, to the Company or any other Person or
Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
42
any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of
Default described in Section 501, shall have made written request
to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities
of that series in the case of any Event of Default described in
Section 501;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Securities of the same series or to obtain or to seek
to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all Holders of Securities of the
same series.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article
Fourteen) and in such Security, of the principal of (and premium, if any,
on) and (subject to Section 307) interest on, such Security or payment of
such coupon 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 rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the
Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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 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.
43
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee relating to or arising under Section 501,
provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default
described in Section 501 and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any 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 Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by such
Holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any
action taken 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 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder of
Securities of any series, or group of such Holders, holding in the aggregate
44
more than ten percent in principal amount of the Securities of such series
Outstanding, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of or any interest or premium on any Security,
on or after the due date expressed in such Security or for such interest (or
in the case of any redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Events of Default.
Within 90 days after the occurrence of any Event of Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such
default hereunder known to the Trustee, unless such Event of Default shall
have been cured or waived; provided, however, that, except in the case of an
Event of Default in the payment of the principal of (or premium, if any, on)
or interest on any Security of such series or in the payment of any sinking
fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities
of such series and any related coupons.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of TIA
Sections 315(a) through 315(d):
(1) if an Event of Default has occurred and is continuing, the Trustee
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;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(3) 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;
(4) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(5) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
45
matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company,
personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by
this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that
the statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
46
loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustee,
to pay or reimburse the Trustee for expenses, disbursements and advances and
to indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. As security for the performance of such obligations of the
Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any, on) or
interest on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have 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 the requirements of
Federal, State, territorial or District of Columbia 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 the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, or
(4) the Company shall determine that the Trustee has failed to
perform its obligations under this Indenture in any material
respect,
47
then, in any such case, (i) the Company, by a Board Resolution, may
remove the Trustee with respect to all Securities, or (ii) subject to
TIA Section 315(e), any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, 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 to the Holders of Securities of such
series in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
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
48
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 that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company 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. Whenever there is a successor
Trustee with respect to one or more (but less than all) series of
Securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in
the provisos to the respective definitions of those terms in
Section 101 which contemplate such situation.
(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 rights,
powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in
the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled
49
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible
Officer of the Trustee, and a copy of such instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by federal
or state authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such 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 shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation to which
such Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, in the
manner provided for 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 agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 606.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By:_____________________________________________
as Authenticating Agent
By:_____________________________________________
Authorized Officer
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SECTION 612. Preferential Collection of Claims Against Company
(a) Subject to the provisions of subsection (b) of this Section 612, if the
Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or any other obligor on the
Securities within three months prior to a default, as defined in
subsection (c) of this Section 612, or subsequent to such a default,
then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders of Securities for which it is acting as
Trustee, and the holders of other indenture securities (as defined in
subsection (c) of this Section 612):
(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 or such other obligor on
the Securities and its other creditors, except any such reduction
resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against
the Company or such other obligor on the Securities upon the date
of such default; and
(2) all property received by the Trustee in respect of any claims 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 or such other obligor on the Securities and
their respective other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (1) payments made on account of
any such claim by any Person (other than the Company or such
other obligor on the Securities) who is liable thereon, and
(ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made
in cash, securities or other property in respect of claims
filed against the Company or such other obligor on the
Securities in bankruptcy or receivership or in proceedings
for reorganization pursuant to Title 11 of the United States
Code or applicable state laws;
(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 the Trustee shall sustain
the burden of proving that at the time such property was so
received, the Trustee had no reasonable cause to believe that
a default, as defined in subsection (c) of this Section 612,
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 such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such
property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three 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
51
for the purpose of repaying or refunding any preexisting claim of the
Trustee as such creditor, such claim shall have the same status as such
preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders of Securities for which it
is acting as Trustee, and the holders of other indenture securities in
such manner that the Trustee, such Holders of Securities 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 or such other obligor on the Securities 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 the Trustee anything on account of the
receipt by it from the Company or such other obligor on the Securities
of the funds and property in such special account and before crediting
to the respective claims of the Trustee, such Holders of Securities,
and the holders of other indenture securities dividends on claims filed
against the Company or such other obligor on the securities 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 in 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 proceeding
for reorganization is pending shall have jurisdiction (i) to apportion
among the Trustee, such Holders of Securities, and the holders of other
indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the
proceeds thereof, or (ii) in lieu of such apportionment in whole or in
part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the
Trustee, such Holders of Securities and the holders of other indenture
securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such
claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three moths' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred.
If any Trustee has resigned prior to the beginning of such three
months' period, it shall be subject to the provisions of this
subsection (a) if and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had
continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to
periods of three months shall be deemed to be references to periods of
four months.
(b) There shall be excluded from the operation of subsection (a) of
this Section 612 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
52
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose
of preserving any 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
advance and of the circumstances surrounding the making
thereof is given to the Holders of Securities at the time and
in the manner provided in Section 703;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 612;
(5) the ownership of stock or of other securities of a company
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 any other obligor on
the Securities; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as
defined in subsection (c) of this Section 612.
(c) As used in this Section 612 the following terms shall be accorded
the following definitions:
(1) the term "default" shall mean any failure to make payment in
full of the principal of or interest on any of the Securities
or on other indenture securities when and as such principal
or interest becomes due and payable.
(2) the term "other indenture securities" shall mean securities
upon which the Company or any other obligor on the Securities
is an "obligor" (as defined in the TIA) outstanding under any
other indenture (A) under which the Trustee is also trustee,
(B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section 612, and (C)
under which a default exists at the time of the apportionment
of the funds and property held in said special account.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to furnish Trustee Information As to the Names and
Addresses of Holders of Securities.
The Company will furnish or cause to be furnished to the Trustee, not less
than 45 days nor more than 60 days after each date (month and day) specified
as an Interest Payment Date for the Securities of the first series issued
under this Indenture (whether or not any Securities of that series are then
Outstanding), but in no event less frequently than semiannually, and at such
other times as the Trustee may request in writing, within 30 days after
receipt by the Company of any such request, a list in such form as the
Trustee may reasonably require containing all information in the possession
or control of the Company, or any of its Paying Agents other than the
Trustee, as to the names and addresses of the Holders of Securities,
obtained since the date as of which the next previous list, if any, was
furnished, excluding from any such list the names and addresses received by
the Trustee in its capacity as registrar (if so acting). Any such list may
be dated as of a date not more than 15 days prior to the time such
information is furnished and need not include information received after
such date.
53
SECTION 702. Preservation of Information; Communication to Holders of
Securities.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Securities
of each series (1) contained in the most recent list furnished to
it as provided in Section 701, (2) received by the Trustee in the
capacity of Paying Agent or registrar (if so acting), and (3)
filed with the Trustee within the two preceding years as provided
for in Section 704. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of
such application, and such application states that the applicants
desire to communicate with other Holders of Securities of any
series or with Holders of all Securities with respect to their
rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application,
at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 702 or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as
the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 702, and as to the approximate cost of mailing to
such Holders of Securities the form of proxy or other
communications, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such
applicants, mail to each of the Holders of Securities of such series,
or all Securities, as the case may be, whose name and address appear in
the information preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section 702, a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment,
of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the Holders of
Securities of such series or all Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been
met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders of Securities with
reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation
or duty to such applicants respecting their application.
(c) Each and every Holder of the Securities, by receiving and holding
the same, agrees with the Company and the trustee that neither the
Company nor the Trustee nor any Paying Agent nor any registrar
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of
Securities in accordance with the provisions of subsection (b) of
this Section 702, regardless of the source from which such
information was derived, and that the Trustee shall not be held
54
accountable by reason of mailing any material pursuant to a
request made under said subsection (b).
SECTION 703. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to
the extent provided in TIA Section 313(c), a brief report dated as of such
May 15 if required by TIA Section 313(a).
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of such Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit to all Holders, in the manner and to the extent provided
in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(4) furnish to the Trustee not less often than annually, a brief
certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and
covenants under the Indenture; such compliance to be determined
without regard to any period of grace or requirement of notice
provided under the Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease, or permit one or more of its Subsidiaries to
convey, transfer or lease, all or substantially all of the property and
assets of the Company and its Subsidiaries on a consolidated basis, to any
Person, unless the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company and its
Subsidiaries on a consolidated basis is organized under the laws of the
United States or any state of the United States or the District of Columbia,
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee,
the Company's obligation for the due and punctual payment of the principal
of (and premium, if any, on) and interest on all the Securities and the
55
performance and observance of every covenant of this Indenture on the part
of the Company to be performed or observed, and, immediately after giving
effect to the transaction, no Event of Default shall have occurred and be
continuing.
This Section shall only apply to a merger or consolidation in which the
Company is not the surviving corporation and to conveyances, leases and
transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company into any
other corporation or any conveyance, transfer or lease of the properties and
assets of the Company and its Subsidiaries on a consolidated basis to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person
which shall theretofore become such in the manner described in Section 801),
except in the case of a lease, shall be discharged of all obligations and
covenants under this Indenture and the Securities and the coupons and may be
dissolved and liquidated.
SECTION 803. Assignment of Rights.
The Company will have the right at all times to assign any of its respective
rights or obligations under this Indenture to a direct or indirect wholly-
owned Subsidiary of the Company; provided, that in the event of any such
assignment, the Company will remain liable for all of its respective
obligations. Subject to the foregoing, this Indenture will be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns. This Indenture may not otherwise be assigned by the
parties hereto.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the
Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less 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 (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or 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 or to
permit or facilitate the issuance of Securities in uncertificated
form; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
56
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become
effective only when there is no 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 establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; 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 609(b); or
(8) to close this Indenture with respect to the authentication and
delivery of additional series of Securities, to cure any
ambiguity, to correct or supplement any provision herein which may
be inconsistent with any other provision herein, 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 series
and any related coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities of any series, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture which affect such series of Securities or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of such
series,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security of such series, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts contemplated
by Section 1005 (except as contemplated by Section 801 and
permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security of such series
that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of any
Holder of any Security of such series, or change any Place of
Payment where, or the Currency in which, any Security of such
series or any premium or 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 or repayment at the option of the Holder, on or
after the Redemption Date or Repayment Date, as the case may be),
or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental
indenture, for any waiver of compliance with certain provisions of
this Indenture which affect such series or certain defaults
applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting with respect to Securities of
such series, or
(3) change the time of payment or reduce the amount of any minimum
sinking fund payment, or
(4) modify any of the provisions of this Section or Section 513,
57
except to increase any such percentage or to provide that certain
other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each
Outstanding Security of such series.
Any such supplemental indenture adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture, or modifying
in any manner the rights of the Holders of Securities of such series, shall
not 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 shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified and amended in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
reasonably required by the Trustee, bear a notation in form reasonably
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth
in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and
punctually pay or cause to be paid the principal of (and premium, if any,
on) and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this
Indenture, subject, however, to the limitations set forth in this Section
1001. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest installments due on Bearer
Securities on or before Maturity shall be payable only upon presentation and
58
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company
will maintain (A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered
for registration of transfer, where 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 this
Section (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where 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 any
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 any required city located outside the United
States 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 which is 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 of the location,
and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, except that Bearer Securities of
any series and the related coupons may be presented and surrendered for
payment at the offices specified in the Security, in London, and the Company
hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any, on) and interest on
any Bearer Security shall be made at the office of the Company's Paying
Agent in The City of New York, if (but 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 the purpose
by the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
any such designation; 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 accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by
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Section 301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities the office or
agency of the Company in the City of Chicago, and initially appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city and as
its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, 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, at least one Exchange
Rate 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 series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium, if any, on) or interest on any of
the Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum in the Currency 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, if
applicable, as provided in Sections 311(b), 311(d) and 311(e)) sufficient to
pay the principal (and premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, prior to or on each due date of
the principal of (and premium, if any, on) or interest on any Securities of
that series, deposit with a Paying Agent a sum (in the Currency described in
the preceding paragraph) sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any, on) and interest on Securities of such series in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of
any payment of principal of (or premium, if any, on) or interest
on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as provided in the Securities of any series, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any, on) or interest on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
60
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the request and
expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee the certificate required by Section
704(4) hereof.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of additional amounts
to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company will
pay to the Holder of any Security of such series or any coupon appertaining
thereto such Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal (or premium, if any, on) or interest on, or in
respect of, any Security of a series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of a series,
such mention shall be deemed to include mention of the payment of Additional
Amounts, if any, provided for by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such
terms 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.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, 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 premium, if any) is made), and at least 10 days prior to each date of
payment of principal (and premium, if any) or interest 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 and the
Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any, on) or interest on the Securities of that series shall be
made to Holders of Securities of that series or any related coupons who are
not United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
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 of that series or
related coupons, and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall
not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled to (i) assume that no such withholding or
deduction is required with respect to any payment of principal (and premium,
if any) or interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising otherwise and
(ii) to make all payments of principal (and premium, if any) and interest
with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without
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.
SECTION 1006. Limitation on Dividends.
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(a) If Securities are issued to a Pacific Telesis Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such
Pacific Telesis Trust and (i) there shall have occurred any event that
would constitute an Event of Default or (ii) the Company shall be in
default with respect of its payment or any other obligations under the
Preferred Securities Guarantee or Common Securities Guarantee relating
to such Pacific Telesis Trust, then (A) the Company shall not declare
or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect
to, any of its capital stock, and (B) the Company shall not make any
payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company which
rank pari passu with or junior to such Securities, provided that the
foregoing restriction in paragraph (A) does not apply to any stock
dividends paid by the Company where the dividend stock is the same
stock as that on which the dividend is being paid.
(b) If Securities are issued to a Pacific Telesis Trust or a trustee of
such a trust in connection with the issuance of Trust Securities by
such Pacific Telesis Trust and the Company shall have given notice of
its election to defer payments of interest on such Securities by
extending the interest payment period as provided in the Indenture and
such period, or any extension thereof, shall be continuing, then (A)
the Company shall not declare or pay any dividend or, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, and (B)
the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
issued by the Company which rank pari passu with or junior to such
Securities, provided that the foregoing restriction in paragraph (A)
does not apply to any stock dividends paid by the Company where the
dividend stock is the same as that on which the dividend is being paid.
SECTION 1007. Covenants as to Pacific Telesis Trusts.
In the event Securities are issued and sold to a Pacific Telesis Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Pacific Telesis Trust, for so long as such Trust Securities remain
Outstanding, the Company will (i) maintain 100% direct or indirect ownership
of the Common Securities of such Pacific Telesis Trust; provided, however,
that any permitted successor of the Company under the Indenture may succeed
to the Company's ownership of the Common Securities, and (ii) use its
reasonable efforts to cause such Pacific Telesis Trust (a) to remain a
statutory business trust, except in connection with a distribution of
Securities as provided in the Declaration of such Pacific Telesis Trust, the
redemption of all of the Trust Securities and in connection with certain
mergers, consolidations or amalgamations permitted by the Declaration of
such Pacific Telesis Trust, and (b) otherwise continue to be treated as a
grantor trust for United States federal income tax purposes.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
reasonably satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to
be redeemed and shall deliver to the Trustee such documentation and records
as shall enable the Trustee to select the Securities to be redeemed pursuant
to Section 1103. In the case of any redemption of Securities 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 with an Officers' Certificate evidencing compliance with such
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restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days 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 the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as
provided in Section 1106) will become due and payable upon each
such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities, 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 Redemption
Date or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price unless security or indemnity
satisfactory to the Company, the Trustee 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 such 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 in the name and at the expense of the Company.
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SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
in the Currency 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, if applicable as provided in Sections 311(b), 311(d) and
312(e)) sufficient to pay the Redemption Price of, and 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 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, if applicable as
provided in Sections 311(b), 311(d) and 311(e)) (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall, if the same were interest bearing,
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 any such Security for redemption in
accordance with said notice, together with all coupons, if any, appertaining
thereto maturing after the Redemption Date, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; 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
installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons 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 and the Trustee if there be
furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the 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 or portion thereof shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the
same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund shall
be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall
be applied to the redemption of Securities of any series as provided for by
the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any mandatory
sinking fund payment with respect to any Securities of a series in cash,
subject to the limitations set forth at Section 1001, the Company may at its
option (1) deliver to the Trustee Outstanding Securities of a series (other
than any previously called for redemption) theretofore purchased or
otherwise acquired by the Company together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto,
and/or (2) receive credit for the principal amount of Securities of such
series which have been previously delivered to the Trustee by the Company or
for Securities of such 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 mandatory sinking fund payment with respect to the Securities of the
same 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 at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory 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 series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash in the Currency 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, if
applicable, as provided in Sections 311(b), 311(d) and 311(e)) and the
portion thereof, if any, which is to be satisfied by delivering or crediting
Securities of that series pursuant to Section 1202 (which Securities will,
if not previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional sinking
fund payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the
next succeeding sinking fund payment date for that series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the
option to deliver or credit Securities as provided in Section 1202 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.
Not more than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
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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.
Prior to any sinking fund payment date, the Company shall pay to the Trustee
or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1103) in cash a sum equal
to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any series
of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with
any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund
shall be added to the sinking fund payment for such series to be made in
cash on the next succeeding sinking fund payment date or, at the request of
the Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase, in the
open market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any
Paying Agent will be reimbursed by the Company) not in excess of the
principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company
covenants that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in the Currency 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, if applicable, as provided in Sections
311(b), 311(d) and 311(e)) sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof,
as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of
such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on
the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the
Company at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier than 45 days
nor later than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with the
terms of such Security, the principal amount of such Security to be repaid,
in increments of the minimum denomination for Securities of such series, and
the denomination or denominations of the Security or Securities to be issued
to the Holder for the portion of the principal amount of such Security
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surrendered that is not to be repaid, must be specified. The principal
amount of any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid
is a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities
or the portions thereof, as the case may be, to be repaid shall become due
and payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so
to be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued interest, if any,
to the Repayment Date; provided, however, that coupons whose Stated Maturity
is on or prior to the Repayment 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 pursuant to
Section 301, only upon presentation and surrender of those coupons; and
provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be accompanied by
all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in
Section 1302 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 and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, 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 the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in
such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 1401. Discharge of Liability on Outstanding Securities of any
Series.
Upon the deposit with the Trustee, in trust, at or before Maturity, of money
or securities of the kind and in the necessary amount (as provided in
Section 1403 of this Indenture) to pay or redeem Outstanding Securities of
any Series (whether upon or prior to their Stated Maturity or the Redemption
Date of such Outstanding Securities, provided that, if such Outstanding
Securities are to be redeemed prior to the Stated Maturity thereof, notice
of such redemption shall have been given as in Article Eleven hereof
provided or provision satisfactory to the Trustee shall have been made for
the giving of such notice), the obligation of the Company duly and
punctually to pay or cause to be paid the principal of and any interest and
premium in respect of such Outstanding Securities and all liability of the
Company in respect of such payment shall cease, terminate and be completely
discharged and the Holders thereof shall thereafter be entitled only to
payment out of the money or securities deposited with the Trustee as
aforesaid for their payment; provided however, that this discharge of the
Company's obligation so to pay and of the liability of the Company in
respect of such payment shall not occur unless the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that Holders of
the Outstanding Securities of such Series will not recognize income, gain or
loss for Federal income tax purposes as a result of such discharge.
SECTION 1402. Discharge of Certain Covenants and Other Obligations.
Upon the deposit with the Trustee, in trust, prior to Maturity of money or
securities of the kind and in the necessary amount (as provided in Section
1403 of this Indenture) to pay or redeem Outstanding Securities of one or
more Series (whether upon or prior to their Stated Maturity or the
Redemption Date of such Outstanding Securities, provided that, if such
Outstanding Securities are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as in Article
Eleven hereof provided or provision satisfactory to the Trustee shall have
been made for the giving of such notice), all of the obligations, covenants
and agreements of the Company with respect to such Outstanding Securities
except those set forth in Section 1001, 1002 and 1005 and except those
specified pursuant to Section 301 or in any supplemental indenture
pertaining to such Outstanding Securities, shall cease, terminate and be
completely discharged.
SECTION 1403. Discharge of Certain Obligations Upon Deposit of Money or
Government Obligations with Trustee.
The conditions for deposit of money or Government Obligations contained in
Sections 1401 and 1402 shall have been satisfied whenever with respect to
any Outstanding Securities denominated in Dollars, the Company shall have
deposited or caused to be deposited irrevocably in trust with the Trustee
dedicated solely to the benefit of the Holders of such Outstanding
Securities:
a) Dollars in an amount equal to the principal amount of such
Outstanding Securities and all unpaid interest thereon to Stated
Maturity, except that, in the case of Outstanding Securities which
are to be redeemed prior to Stated Maturity, the amount so to be
deposited or held shall be the principal amount of such
Outstanding Securities and interest thereon to the Redemption
Date, together with the redemption premium, if any; or
b) Government Obligations in such amounts and maturing at such times
that the proceeds of said obligations to be received upon their
respective maturities and interest payment dates will provide
funds sufficient to pay the principal, premium, if any, and
interest to Stated Maturity, or to the Redemption Date, as the
case may be, with respect to all of the Outstanding Securities to
be paid or redeemed, as such principal, premium and interest
become due, provided that the Trustee shall have been irrevocably
instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with
respect to said Outstanding Securities.
The conditions for deposit of money or Government Obligations contained in
Sections 1401 and 1402 shall have been satisfied whenever with respect to
any Outstanding Securities denominated in one or more currencies or
composite currency other than Dollars, the Company shall have deposited or
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caused to be deposited irrevocably in trust with the Trustee dedicated
solely to the benefit of the Holders of such Subordinated Securities:
(i) Lawful money in such Currency in which such Outstanding
Securities are payable and in an amount equal to the
principal amount of such Outstanding Securities and all
unpaid interest thereon to Stated Maturity, except that, in
the case of Outstanding Securities which are to be redeemed
prior to Stated Maturity, the amount so to be deposited or
held shall be the principal amount of such Outstanding
Securities and interest thereon to the Redemption Date,
together with the redemption premium, if any; or
(ii) Government Obligations in such amounts and maturing at such
times that the proceeds of said obligations to be received
upon their respective maturities and interest payment dates
will provide funds sufficient to pay the principal, premium,
if any, and interest to Stated Maturity, or to the Redemption
Date, as the case may be, with respect to all of the
Outstanding Securities to be paid or redeemed, as such
principal, premium and interest become due, provided that the
Trustee shall have been irrevocably instructed to apply to
the proceeds of said obligations to the payment of said
principal, premium, if any, and interest with respect to said
Outstanding Securities.
SECTION 1404. Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any Paying Agent for the
payment of the principal of and any premium and interest on any Outstanding
Security and not so applied but remaining unclaimed under applicable law
shall be transferred by the Trustee to the appropriate Persons in accordance
with applicable laws, and the Holder of such Outstanding Security shall
thereafter look only to such Persons for any payment which such Holder may
be entitled to collect and all liability of the Trustee and such Paying
Agent with respect to such moneys shall thereupon cease.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. 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 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section
1501, to be held at such time and at such place in the cities of
San Francisco, New York or London as the Trustee shall reasonably
determine after consultation with the Company. Notice of every
meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 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 series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 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
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place in the cities of San Francisco, New York or London for such
meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (a) of this Section.
SECTION 1503. 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 Person entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1504. 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; provided, however, that, if any
action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. 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. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(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 any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of
such series which 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 not
less than 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 not less than such
specified percentage in principal amount of the Outstanding Securities of
that series.
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.
Notwithstanding the foregoing provisions of this Section 1504, if any action
is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand,
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authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether
such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken
under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a 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 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
1502(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 $25 principal amount of
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in
Section 101); 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 1502 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 1506. 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 duplicate 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 1502 and, if applicable, Section 1504. Each copy shall be signed
and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another
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to the Trustee to be preserved by the 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 Indenture 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 Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
{Seal} PACIFIC TELESIS GROUP
Attest:
__________________________ By:_____________________________
Name:___________________________
Title:__________________________
{Seal} THE FIRST NATIONAL BANK OF CHICAGO
Attest:
__________________________ By:_____________________________
Trust Officer Name:___________________________
Title:__________________________
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