TYSON FOODS, INC.
as Issuer
and
THE CHASE MANHATTAN BANK
as Trustee
___________________________________
Indenture
Dated as of _________ __, 1995
___________________________________
31
TABLE OF CONTENTS*
Page
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. 1
SECTION 1.2 Other Definitions. 8
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act 8
SECTION 1.4 Rules of Construction 9
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating 9
SECTION 2.2 Execution and Authentication 10
SECTION 2.3 Amount Unlimited; Issuable in Series 12
SECTION 2.4 Denomination and Date of Securities;
Payments of Interest 15
SECTION 2.5 Registrar and Paying Agent;
Agents Generally 16
SECTION 2.6 Paying Agent to Hold Money in Trust 17
SECTION 2.7 Transfer and Exchange 18
SECTION 2.8 Replacement Securities 21
SECTION 2.9 Outstanding Securities 22
SECTION 2.10 Temporary Securities 23
SECTION 2.11 Cancellation 23
SECTION 2.12 CUSIP Numbers 23
SECTION 2.13 Defaulted Interest 24
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article 24
SECTION 3.2 Notice of Redemption; Partial
Redemptions 24
SECTION 3.3 Payment of Securities Called for
Redemption 26
SECTION 3.4 Exclusion of Certain Securities
from Eligibility for Selection
for Redemption 28
SECTION 3.5 Mandatory and Optional Sinking Funds 28
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities 31
SECTION 4.2 Maintenance of Office or Agency 32
SECTION 4.3 Negative Pledge 33
SECTION 4.4 Certain Sale and Lease-back Transactions 34
SECTION 4.5 Notice of Defaults 36
SECTION 4.6 Compliance Certificates; Reports 36
SECTION 4.7 Waiver of Stay, Extension or Usury Laws 37
32
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. 37
SECTION 5.2 Successor Substituted 38
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default 38
SECTION 6.2 Acceleration 39
SECTION 6.3 Other Remedies 41
SECTION 6.4 Waiver of Past Defaults 42
SECTION 6.5 Control by Majority 42
SECTION 6.6 Limitation on Suits 42
SECTION 6.7 Rights of Holders to Receive Payment 43
SECTION 6.8 Collection Suit by Trustee 43
SECTION 6.9 Trustee May File Proofs of Claim 44
SECTION 6.10 Application of Proceeds 44
SECTION 6.11 Restoration of Rights and Remedies 45
SECTION 6.12 Undertaking for Costs 45
SECTION 6.13 Rights and Remedies Cumulative 46
SECTION 6.14 Delay or Omission Not Waiver 46
ARTICLE 7
TRUSTEE
SECTION 7.1 General 46
SECTION 7.2 Certain Rights of Trustee 47
SECTION 7.3 Individual Rights of Trustee 48
SECTION 7.4 Trustee's Disclaimer 48
SECTION 7.5 Notice of Default 48
SECTION 7.6 Reports by Trustee to Holders 49
SECTION 7.7 Compensation and Indemnity 49
SECTION 7.8 Replacement of Trustee 50
SECTION 7.9 Successor Trustee by Merger, Etc. 51
SECTION 7.10 Eligibility 51
SECTION 7.11 Money Held in Trust 52
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment 52
SECTION 8.2 Defeasance at Any Time 53
SECTION 8.3 Covenant Defeasance 55
SECTION 8.4 Application of Trust Money 57
SECTION 8.5 Repayment to Company 58
SECTION 8.6 Reinstatement 58
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders 59
SECTION 9.2 With Consent of Holders 59
SECTION 9.3 Revocation and Effect of Consent 61
SECTION 9.4 Notation on or Exchange of Securities 62
SECTION 9.5 Trustee to Sign Amendments, Etc. 62
SECTION 9.6 Conformity with Trust Indenture Act 62
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ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939 63
SECTION 10.2 Notices 63
SECTION 10.3 Certificate and Opinion as to Conditions
Precedent 64
SECTION 10.4 Statements Required in Certificate or
Opinion 64
SECTION 10.5 Evidence of Ownership 65
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar 66
SECTION 10.7 Payment Date Other Than a Business Day 66
SECTION 10.8 Governing Law 66
SECTION 10.9 No Adverse Interpretation of Other Agreements 66
SECTION 10.10 Successors 66
SECTION 10.11 Duplicate Originals 66
SECTION 10.12 Separability 66
SECTION 10.13 Table of Contents, Headings, Etc. 67
SIGNATURES
34
INDENTURE, dated as of _________ __, 1995, between
TYSON FOODS, INC., a Delaware corporation, as the Company,
and The Chase Manhattan Bank, N.A., a national banking association, as
Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time
to time of its debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among
other things, for the authentication, delivery and administration
thereof, the Company has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, all things necessary to make this Inden ture a
valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee
mutually covenant and agree for the equal and proportionate benefit of
the
respective holders from time to time of the Securities or of series
thereof and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Agent" means any Registrar, Paying Agent or Authenticating
Agent.
"Attributable Debt" means, as to any particular lease under
which any Person is at the time liable, other than a Capital Lease,
and at any date as of which the amount thereof is to be determined,
the total net amount of rent required to be paid by such Person under
such lease during the initial term thereof as determined in accordance
with GAAP, discounted from the last date of such initial term to the
date of determination at a rate per annum equal to the discount rate
which would be applicable to a Capital Lease with like term in
accordance with GAAP. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges.
In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of
such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated. "Attributable Debt" means, as to a Capital Lease under
which any Person is at the time liable and at any date as of which the
amount thereof is to be determined, the capitalized amount thereof
that would appear on the face of a balance sheet of such Person in
accordance with GAAP.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street
35
Journal (Eastern Edition), in the case of the United Kingdom, will, if
practicable, be the Financial Times (London Edition) and, in the case
of Luxembourg, will, if practicable, be the Luxemburger Wort)
published in English and customarily published at least once a day for
at least five days in each calendar week and of general circulation in
The City of New York, the United Kingdom or in Luxembourg, as
applicable. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof,
certified by the Secretary or an assistant secretary to have been duly
adopted and to be in full force and effect on the date of
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close
in The City of New York and with respect to any Security the interest
of which is based on LIBOR, in the City of London.
"Capital Lease" means, as applied to any Person, any lease of
any property which, in conformity with GAAP, is required to be
capitalized on the balance sheet of such Person.
"Capital Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or nonvoting) of such Person's capital
stock, including, without limitation, all Common Stock and Preferred
Stock.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or,
if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Common Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or nonvoting) of such Person's common
stock, whether now outstanding or issued after the date of this
Indenture, including, without limitation, all series and classes of
such common stock.
"Company" means the party named as such in the first
paragraph of this Indenture until a successor replaces it pursuant to
Article 5 of this Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" means the excess over the
current liabilities of the Company of all of its assets as determined
by the Company and as would be set forth in a consolidated balance
sheet of the Company and its Subsidiaries, on a consolidated basis, in
accordance with GAAP as of a date within 90 days of the date of such
36
determination, after deducting goodwill, trademarks, patents, other
like intangibles and the minority interest of others.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at the
date of this Indenture, located at 4 Chase MetroTech Center, Brooklyn,
New York 11245, Attention: Corporate Trust.
"Default" means any Event of Default as defined in Section
6.1 and any event that is, or after notice or passage of time or both
would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depo sitary by the Company
pursuant to Section 2.2 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then
a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exempted Debt" means the sum, without dupli cation, of the
following items outstanding as of the date Exempted Debt is being
determined: (i) indebtedness of the Company and its Restricted
Subsidiaries incurred after the date of this Indenture and secured by
liens created or assumed or permitted to exist pursuant to Section
4.3(b) and (ii) Attributable Debt of the Company and its Restricted
Subsidiaries in respect of all sale and lease-back transac tions with
regard to any Principal Property entered into pursuant to Section
4.4(b).
"Funded Debt" means all indebtedness for money borrowed,
including purchase money indebtedness, having a maturity of more than
one year from the date of its creation or having a maturity of less
than one year but by its terms being renewable or extendible, at the
option of the obligor in respect thereof, beyond one year from its
creation.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this
Indenture.
"Holder" or "Securityholder" means the registered holder of
any Security.
"Indenture" means this Indenture as originally executed or
as it may be amended or supplemented from time to time by one or more
indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture and shall include the forms
and terms of the Securities of each series established as contemplated
pursuant to Sections 2.1 and 2.3.
37
"Interest" includes interest payable on Original Issue
Discount Securities after the maturity thereof.
"Officer" means, with respect to the Company, the chairman
of the board of directors, the president or chief executive officer,
any vice president, the chief financial officer, the treasurer or any
assistant treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the
name of the Company (i) by the chairman of the board of directors, the
president or chief executive officer or a vice president and (ii) by
the chief financial officer, the treasurer or any assistant treasurer,
the secretary or any assistant secretary, complying with Section 10.4
(except Officers' Certificates provided for in Section 4.7) and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company,
satisfactory to the Trustee and complying with Section 10.4.
"Original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security
or (b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if any,
thereon, the stated maturity or maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the
Company or its agents upon the issuance of such Securities.
"Person" means an individual, a corporation, a partnership,
a limited liability company, an association, a trust or any other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or nonvoting) of such Person's preferred or
preference stock, whether now outstanding or issued after the date of
the Indenture, including, without limitation, all series and classes
of such preferred or preference stock.
"Principal" of a Security means the principal amount of,
and, unless the context indicates otherwise, includes any premium
payable on, the Security.
"Principal Property" means (i) land, land improvements,
buildings and associated fixtures and factory equipment owned or
leased pursuant to a Capital Lease and used by the Company or a
38
Restricted Subsidiary primarily for processing, producing, packaging
or storing its products, raw materials, inventories or other materials
and supplies and located within the United States of America and
having an acquisition cost plus capitalized improvements in excess of
1% of Consolidated Net Tangible Assets as of the date of such
determination, (ii) any property listed on Schedule 1.1 hereto and
(iii) any asset held as of the date hereof by Tyson Holding Company,
Inc., but shall not include any such property or asset described in
clauses (i), (ii) or (iii) that is financed through the issuance of
tax exempt governmental obligations, or any such property or asset
that has been determined by Board Resolution of the Company not to be
of material importance to the respective businesses conducted by the
Company or such Restricted Subsidiary, effective as of the date such
resolution is adopted.
"Registered Global Security", means a Security evidencing
all or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.2, and bearing
the legend prescribed in Section 2.2.
"Registered Security" means any Security registered on the
Security Register.
"Responsible Officer" means any officer of the Trustee
specifically authorized to administer the Trustee's duties under this
Indenture.
"Restricted Subsidiary" means any Subsidiary organized and
existing under the laws of the United States of America and the
principal business of which is carried on within the United States of
America which owns or is a lessee pursuant to a Capital Lease of any
Principal Property or owns shares of Capital Stock or indebtedness of
another Restricted Subsidiary other than:
(i) each Subsidiary the major part of whose business consists of
finance, banking, credit, leasing, insurance, financial services
or other similar operations, or any combination thereof;
and
(ii) each Subsidiary formed or acquired after the date hereof
for the purpose of acquiring the business or assets of another
Person and which does not acquire all or any substantial part of
the business or assets of the Company or any Restricted
Subsidiary; provided, however, that the Board of Directors of the
Company may by Board Resolution declare any such Subsidiary to be
a Restricted Subsidiary, effective as of the date such resolution
is adopted.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and
delivered under this Indenture and, unless the context indicates
otherwise, shall include any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as
amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than
39
50% of the outstanding Voting Stock is owned, directly or indirectly,
by such Person and one or more other Subsidiaries of such Person.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in
accordance with the provisions of Article 7 of this Indenture and
thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code 77aaa-77bbbb), as in effect on the date of
this Indenture, except as provided in Section 9.6 or as used in
Sections 8.2 and 8.3.
"United States Bankruptcy Code" means the Bankruptcy Reform
Act of 1978, as amended and as codified in Title 11 of the United
States Code, as amended from time to time hereafter, or any successor
federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of an
agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment
of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the
governing body of such Person.
"Yield to Maturity" means as the context may require the
yield to maturity (i) on a series of Securities or (ii) if the
Securities of a series are issuable from time to time, on a Security
of such series, calculated at the time of issuance of such series in
the case of clause (i) or at the time of issuance of such Security of
such series in the case of clause (ii), or, if applicable, at the most
recent redetermination of interest on such series or on such Security,
and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such
Security.
40
SECTION 1.2 Other Definitions.
Authenticating Agent 2.2
Event of Default 6.1
Paying Agent 2.5
Register 2.5
Registrar 2.5
Security Register 2.5
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and
made a part of this Indenture. The following terms used in this
Indenture that are defined by the Trust Indenture Act have the
following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act
to another statute or defined by a rule of the Commission and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.4 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(vi) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each series
shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more
Board Resolutions or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture
and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law, or with any
rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution
of the Securities. Unless otherwise so established, Unregistered
41
Securities shall have coupons attached.
SECTION 2.2 Execution and Authentication. Two Officers shall
execute the Securities (other than coupons) for the Company by
facsimile or manual signature in the name and on behalf of the
Company. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") to authenticate Securities (other than
coupons). The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
Authenticating Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this
Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities of any
series having attached thereto appropriate coupons, if any, executed
by the Company to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the
Trustee shall thereupon authenticate and deliver such Securities to or
upon the order of the Company. In first authenticating any Securities
of a series, the Trustee shall be entitled to receive and (subject to
Article 7) shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the
forms and terms of the Securities of the series were established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms
of the Securities of such series have been, or will be, when
established in accordance with such procedures as shall be
referred to therein, established in compliance with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(3) an Opinion of Counsel substantially to the effect that the
forms and term of the Securities of such series have been, or
will be, when established in accordance with such procedures as
shall be referred to therein, established in compliance with this
Indenture and that the Securities have been duly authorized and,
if executed and authenticated in accordance with the provisions
of the Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, would be entitled
to the benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other
42
similar laws affecting creditors' rights generally, general
principles of equity, and such other matters as shall be
specified therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the
form of one or more Registered Global Securities, then the Company
shall execute and the Trustee shall authenticate and deliver one or
more Registered Global Securities that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued in such form and not yet
canceled, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered
form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other senior and
unsubordinated debt of the Company. There shall be established in or
pursuant to Board Resolutions or one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenti cated and delivered
under this Indenture and any limitation on the ability of the
Company to increase such aggregate principal amount after the
initial issuance of the Securities of that Series (except for
Securities authenticated and delivered upon registra tion of
transfer of, or in exchange for, or in lieu of, or upon
redemption of, other Securities of the series pursuant hereto;
(3) the date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per annum
at which the Securities of the series shall bear interest, if
43
any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Regis
tered Securities) on which a record shall be taken for the
determination of Holders to whom interest is paya ble and/or the
method by which such rate or rates or date or dates shall be
determined and the basis on which interest shall be calculated if
other than a 360day year consisting of 12 30-day months;
(5) the place or places where the principal of and any interest
on Securities of the series shall be payable (if other than as
provided in Section 4.2), any Registered Securities of the series
may be surrendered for exchange, notices, demands to or upon the
Company in respect of the Securities of the series and this
Indenture may be served and where notice to Holders may be
published;
(6) the right, if any, of the Company to redeem Securities of
the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms
and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the
period or periods within which and any of the terms and condi
tions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof in case of Registered Securi ties, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations
in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the currency of the United States of America
or if other than the currency in which the Securities of the
series are denominated, the currency or currencies, including
composite currencies, in which payment of the principal of (and
premium, if any)and interest on the Securities of the series
shall be payable, and the manner in which any such currencies
shall be valued against other currencies in which any other
Securities shall be payable;
(11) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global Securities)
or Unregistered Securities (with or without coupons), or any
combination of the foregoing, any restrictions applicable to the
offer, sale or delivery of Unregistered Securities or the payment
of interest thereon and, if other than as otherwise provided
herein, the terms upon which Unregistered Securities of any
44
series may be exchanged for Registered Securities of such series
and vice versa;
(12) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment
or governmental charge withheld or deducted and, if so, whether
the Company will have the option to redeem such Securities rather
than pay such additional amounts;
(13) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, the form and terms of such certificates, documents or
conditions;
(14) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with
respect to the Securities of the series;
(15) provisions, if any, for the defeasance of the Securities of
the series (including provisions permitting defeasance of less
than all Securities of the series), which provisions may be in
addition to, in substitution for, or in modification of (or any
combination of the foregoing) the provisions of Article 8;
(16) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of
the Depositary for such Registered Global Security or Securities;
(17) any other events of default or covenants with respect to
the Securities of the series; and
(18) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto, shall be substantially identical, except in the
case of Registered Securities as to denomina tion and except as may
otherwise be provided by or pursuant to the Board Resolution referred
to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or
in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and
established from time to time prior to the issuance thereof by
procedures described in such Board Resolution or supplemental
indenture.
A series of Securities may include one or more tranches
(each a "tranche") of Securities, including Securities issued in a
Periodic Offering. The Securities of different tranches may have one
or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall
45
have identical terms, including authentication date and public
offering price. Notwithstanding any other provision of this
Indenture, with respect to Sections 2.2 (other than the fourth
paragraph thereof) through 2.4, 3.1 through 3.5, 6.1 through 6.14, 8.1
through 8.5 and 9.2, if any series of Securities includes more than
one tranche, all provisions of such sections applicable to any series
of Securities shall be deemed equally applicable to each tranche of
any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such
series or tranche pursuant to this Section 2.3. In particular, and
without limiting the scope of the next preceding sentence, any of the
provisions of such sections which provide for or permit action to be
taken with respect to a series of Securities shall also be deemed to
provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no
comparable action is taken with respect to Securities in the remaining
tranches of that series.
SECTION 2.4 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as
Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, if not so established
with respect to Registered Securities of any series, in denominations
of $1,000 and any integral multiple thereof. If the denomina tions of
Unregistered Securities of any series are not so established, such
Securities shall be issuable in denominations of $1,000 and $5,000.
The Securities of each series shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan
as the officers of the Company executing the same may determine, as
evidenced by the execution thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided
pursuant to Section 2.3. The Securities of each series shall bear
interest, if any, from the date, and such interest and shall be
payable on the dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date
applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if
any, payable on such interest payment date notwithstanding any
transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to
the extent the Company shall default in the payment of the interest
due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "record date" as
used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered
Securities of such series established as contemplated by Section 2.3,
or, if no such date is so established, if such interest payment date
is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
46
SECTION 2.5 Registrar and Paying Agent; Agents Generally.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented
for payment (the "Paying Agent"), which shall be in The City of New
York. The Company shall cause the Registrar to keep a register of the
Registered Securities and of their transfer and exchange (the
"Security Register"). The Company may have one or more co-Registrars
and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent.
The Company shall give prompt written notice to the Trustee of the
name and address of any Agent and any change in the name or address of
an Agent. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such. The Company may remove any
Agent upon written notice to such Agent and the Trustee; provided that
no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an
appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this
proviso. The Company or any Affiliate of the Company may act as
Paying Agent, Registrar or co-Registrar; provided that neither the
Company nor an Affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of
this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar,
Paying Agent and Authenticating Agent. If, at any time, the Trustee
is not the Registrar, the Registrar shall make available to the
Trustee on or before each Interest Payment Date and at such other
times as the Trustee may reasonably request the names and addresses of
the Holders as they appear in the Security Register.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not later
than each due date of any principal or interest on any Securities, the
Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal or interest. The
Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the
benefit of the Holders of such Securities or the Trustee all money
held by the Paying Agent for the payment of principal of and interest
on such Securities and shall promptly notify the Trustee of any
default by the Company in making any such payment. The Company at any
time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at
any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed.
Upon doing so, the Paying Agent shall have no further liability for
the money so paid over to the Trustee. If the Company or any Affiliate
of the Company acts as Paying Agent, it will, on or before each due
date of any principal of or interest on any Securities, segregate and
hold in a separate trust fund for the benefit of the Holders thereof a
47
sum of money sufficient to pay such principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise
disposed of as provided in this Indenture, and will promptly notify
the Trustee of its action or failure to act as required by this
Section.
SECTION 2.7 Transfer and Exchange. Unregistered Securities
(except for any temporary global Unregistered Securities) and coupons
(except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities
of any series (other than a Registered Global Security, except as set
forth below) may be exchanged for a Registered Security or Registered
Securities of such series and tenor having authorized denominations
and an equal aggregate principal amount, upon surrender of such
Registered Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section
2.5 and upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise established
pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations
and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section
2.5, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default
thereto appertaining, and upon payment, if the Company shall so
require, of the charges hereinafter provided. At the option of the
Holder thereof, if Unregistered Securities of any series, maturity
date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant
to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with
Section 2.5, with, in the case of Unregistered Securities that have
coupons attached, all unmatured coupons and all matured coupons in
default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.3, Registered Securities of any series
may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to
the Company, the Registrar and the Trustee duly executed by, the
holder or his attorney duly authorized in writing.
48
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities. No
service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.7,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing
all or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of
such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or
unable to continue as Depositary for such Registered Global Securities
or if at any time the Depositary for such Registered Global Securities
shall no longer be eligible under Section 2.2, the Company shall
appoint a successor Depositary eligible under Section 2.2 with respect
to such Registered Global Securities. If a successor Depositary
eligible under Section 2.2 for such Registered Global Securities is
not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of
such series, will authenticate and deliver, Registered Securities of
such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such
Registered Global Securities, in exchange for such Registered Global
Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no
longer be maintained in global form. In such event the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series and tenor in
definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal
amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in
the form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable
supply of certificated Registered Securities without the legend
required by Section 2.2 and the Trustee agrees to hold such Registered
Securities in safekeeping until authenticated and delivered pursuant
to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole
or in part for Registered Securities of the same series and tenor in
49
definitive registered form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security
and the aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (i) above.
Registered securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in
such names and in such authorized denominations as the Depositary for
such Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Company or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of
any Securities to the contrary, none of the Company, the Trustee or
any agent of the Company or the Trustee shall be required to exchange
any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Company
(such as, for example, the inability of the Company to deduct from its
income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall
be entitled to rely on an Officers' Certificate or an Opinion of
Counsel in determining such result.
The Registrar shall not be required (i) to issue, register the
transfer of or exchange Securities of any series for a period of 15
days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for
redemption in whole or in part.
SECTION 2.8 Replacement Securities. If a mutilated
Security of any series is surrendered to the Trustee or if a Holder
provides evidence satisfactory to the Trustee that its Security of any
series has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount and bearing a number not
contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company,
the Trustee and any Agent from any loss that any of them may suffer if
50
a Security is replaced. The Company may charge such Holder for its
expenses and the expenses of the Trustee in replacing a Security. In
case any such mutilated, lost, destroyed or wrongfully taken Security
has become or is about to become due and payable, the Company in its
discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of
the Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities outstanding
at any time are all Securities that have been authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding unless and until the Trustee and the Company receive
proof satisfactory to them that the replaced Security is held by a
bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate
of the Company) holds on the maturity date or any redemption date or
date for repurchase of the Securities money sufficient to pay
Securities payable or to be redeemed or repurchased on that date, then
on and after that date such Securities cease to be outstanding and
interest on them shall cease to accrue; provided, however, that with
respect to Securities to be repurchased, interest on them shall cease
to accrue only when such Securities have been physically tendered to
the Trustee by the Company.
A Security does not cease to be outstanding because the
Company or one of its Affiliates holds such Security, provided,
however, that, in determining whether the Holders of the requisite
principal amount of the outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Securities 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 Affiliate of the Company.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities of
such series. Temporary Securities of any series shall be
substantially in the form of definitive Securities of such series but
may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary
51
Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or
agency of the Company designated for such purpose pursuant to Section
4.2, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such
series and tenor and authorized denominations. Until so exchanged,
the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for transfer, exchange, payment or cancellation
and shall dispose of them in accordance with its normal procedures or
the written instructions of the Company. The Company may not issue
new Securities to replace Securities it has paid in full or delivered
to the Trustee for cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in
use), and the Trustee shall use CUSIP numbers or CINS numbers, as the
case may be, in notices of redemption or exchange as a convenience to
Holders; provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption
or exchange.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay, or
shall deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, which shall mean
the 15th day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business
Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the
special record date, the payment date and the amount of defaulted
interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to any sinking fund for the
52
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part at the option of the
Company shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of
Registered Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the
Holders of Unregistered Securities of any series to be redeemed as a
whole or in part, who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 prior to
the date fixed for redemption, to such Holders at such addresses as
were so furnished to the Trustee (and, in the case of any such notice
given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to
all other Holders of Unregistered Securities of any series to be
redeemed as a whole or in part shall be published in an Authorized
Newspaper in The City of New York and in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks,
the first publication to be not less than 30 nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of
any other Security of such series.
The notice of redemption to each such Holder shall specify
the principal amount of each Security of such series held by such
Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of
Securities with coupons attached thereto, of all coupons appertaining
thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is to
be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of
such Security, a new Security or Securities of such series and tenor
in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
53
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit
with the Trustee or with one or more paying agents (or, if the Company
is acting as its own paying agent, set aside, segregate and hold in
trust as provided in Section 2.6) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If all of the
outstanding Securities of a series are to be redeemed, the Company
will deliver to the Trustee at least 20 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.2 an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the
outstanding Securities of a series are to be redeemed, the Company
will deliver to the Trustee at least 20 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.2 (or such shorter period as shall
be acceptable to the Trustee) an Officers' Certificate stating the
aggregate principal amount of such Securities to be redeemed. In case
of a redemption at the election of the Company prior to the expiration
of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officers' Certificate stating
that such redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the
Company in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after such date
(unless the Company shall default in the payment of such Securities at
the redemption price, together with interest accrued to such date)
interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.4, such Securities shall cease from and after the date
fixed for redemption to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment
54
specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption,
said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date
fixed for redemption shall be payable in the case of Securities with
coupons attached thereto, to the Holders of the coupons for such
interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as
such on the relevant record date subject to the terms and provisions
of Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid
or duly provided for, bear interest from the date fixed for redemption
at the rate of interest or Yield to Maturity (in the case of an
Original Issue Discount Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons
maturing after the date fixed for redemption, the surrender of such
missing coupon or coupons may be waived by the Company and the
Trustee, if there be furnished to each of them such security or
indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at
the expense of the Company, a new Security or Securities of such
series and tenor (with any unmatured coupons attached), of authorized
denominations, in principal amount equal to the unredeemed portion of
the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written
statement signed by an authorized officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Company or (b)
an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is
herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as
the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the
55
Company may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except
through a mandatory sinking fund payment) by the Company or receive
credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant to
Section 2.11, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so
credited) redeemed by the Company through any optional sinking fund
payment. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified
in such Securities.
On or before the sixtieth day next preceding each sinking
fund payment date for any series, the Company will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 10.4) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and
the portion to be satisfied by credit of specified Securities of such
series and the basis for such credit, (b) stating that none of the
specified Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been
waived or cured) and are continuing and (d) stating whether or not the
Company intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount
of such optional sinking fund payment which the Company intends to pay
on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.11
to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash payments
or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or
before any such sixtieth day, to deliver such Officer's Certificate
and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking
fund payment date plus any unused balance of any preceding sinking
fund payments made in cash shall exceed $50,000 or a lesser sum if the
Company shall so request with respect to the Securities of any series,
such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking
fund redemption price thereof together with accrued interest thereon
56
to the date fixed for redemption. If such amount shall be $50,000 or
less and the Company makes no such request then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall
select, in the manner provided in Section 3.2, for redemption on such
sinking fund payment date a sufficient principal amount of Securities
of such series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration
and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Company or (b) an entity specifically
identified in such Officers' Certificate as directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense
of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 3.2
(and with the effect provided in Section 3.3) for the redemption of
Securities of such series in part at the option of the Company. The
amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next
cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose,
to the payment of the principal of, and interest on, the Securities of
such series at maturity.
Before each sinking fund payment date, the Company shall pay
to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to
be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking
fund during the continuance of a default in payment of interest on
such Securities or of any Event of Default except that, where the
mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Company a
sum sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such series at the time when any such default
or Event of default shall occur, and any moneys thereafter paid into
the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and
held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 6.4 or the
default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on
the next succeeding sinking fund payment date in accordance with this
57
Section to the redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and this Indenture. The
interest on Securities with coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities)
shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as
they severally mature. The interest on any temporary Unregistered
Securities (together with any additional amounts payable pursuant to
the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other installments
of interest, if any, only upon presentation of such Securities for
notation thereon of the payment of such interest. The interest on
Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or
upon the written instructions of the Holders thereof and at the option
of the Company may be paid by wire transfer or mailing checks for such
interest payable to or upon the written order of such Holders at their
last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder
of at least $1,000,000 aggregate principal amount of Registered
Securities so agree, payments of interest on, and any portion of the
principal of, such Holder's Registered Securities (other than interest
payable at maturity or on any redemption or repayment date or the
final payment of principal on a Security) shall be made by the Paying
Agent, upon receipt from the Company of immediately available funds by
11:00 A.M., New York City time (or such other time as may be agreed to
between the Company and the Paying Agent), directly to the Holder of
such Security (by Federal funds wire transfer or otherwise within the
United States) if the Holder has delivered written instructions to the
Trustee 15 days prior to such payment date requesting that such
payment will be so made and designating the bank account in the United
States to which such payments shall be so made and in the case of
payments of principal surrenders the same to the Trustee in exchange
for a Security or Securities aggregating the same principal amount as
the unredeemed principal amount of the Securities surrendered. The
Trustee shall be entitled to rely on the last instruction delivered by
the Holder pursuant to this Section 4.1 unless a new instruction is
delivered 15 days prior to a payment date. The Company will indemnify
and hold each of the Trustee and any Paying Agent harmless against any
loss, liability or expense (including attorneys' fees) resulting from
any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any
payment in accordance with any such agreement.
The Company shall pay interest on overdue principal, and
interest on overdue installments of interest, to the extent lawful, at
the rate per annum specified in the Securities.
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SECTION 4.2 Maintenance of Office or Agency. The Company
will maintain in The City of New York, an office or agency where
Securities may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may
be served. The Company hereby initially designates the Corporate
Trust Office of the Trustee, located in The City of New York, as such
office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the
Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any
stock exchange on which the Securities of any series are listed) where
the Unregistered Securities, if any, of each series and coupons, if
any, appertaining thereto may be presented for payment. No payment on
any Unregistered Security or coupon will be made upon presentation of
such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to
an account in, or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations then in
effect, such payment can be made without adverse tax consequences to
the Company. Notwithstanding the foregoing, if full payment in United
States Dollars ("Dollars") at each agency maintained by the Company
outside the United States for payment on such Unregistered Securities
or coupons appertaining thereto is illegal or effectively precluded by
exchange controls or other similar restrictions, payments in Dollars
of Unregistered Securities of any series and coupons appertaining
thereto which are payable in Dollars may be made at an agency of the
Company maintained in The City of New York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided that no such
designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in The City of New York
for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.3 Negative Pledge. (a) The Company will not,
and will not permit any Restricted Subsidiary to, create, incur or
suffer to exist any mortgage or pledge, as security for any
indebtedness, on or of any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property of the Company
or a Restricted Subsidiary, whether such shares of stock, indebtedness
or other obligations of a Subsidiary or Principal Property of the
Company or a Restricted Subsidiary is owned at the date of this
Indenture or hereafter acquired, unless the Company secures or causes
such Restricted Subsidiary to secure the outstanding Securities
equally and ratably with all indebtedness secured by such mortgage or
59
pledge, so long as such indebtedness shall be so secured; provided,
however, that this covenant shall not apply in the case of: (i) the
creation of any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal
Property hereafter acquired (including acquisitions by way of merger
or consolidation) by the Company or a Restricted Subsidiary
contemporaneously with such acquisition, or within 180 days
thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or the assumption of any mortgage,
pledge or other lien upon any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property hereafter
acquired existing at the time of such acquisition, or the acquisition
of any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property subject to any mortgage, pledge
or other lien without the assumption thereof, provided that every such
mortgage, pledge or lien referred to in this clause (i) shall attach
only to the shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed
improvements thereon; (ii) any mortgage, pledge or other lien on any
shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property existing at the date of this Indenture; (iii)
any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal
Property in favor of the Company or any Restricted Subsidiary; (iv)
any mortgage, pledge or other lien on Principal Property being
constructed or improved securing loans to finance such construction or
improvements; (v) any mortgage, pledge or other lien on shares of
stock, indebtedness or other obligations of a Subsidiary or any
Principal Property incurred in connection with the issuance of tax-
exempt governmental obligations; and (vi) any renewal of or
substitution for any mortgage, pledge or other lien permitted by any
of the preceding clauses (i) through (v), provided, in the case of a
mortgage, pledge or other lien permitted under clause (i), (ii) or
(iv), the indebtedness secured is not increased nor the lien extended
to any additional shares of stock, indebtedness or other obligations
of a Subsidiary or any additional Principal Property.
(b) Notwithstanding the provisions of paragraph (a) of this Section,
the Company or any Restricted Subsidiary may create or assume liens in
addition to those permitted by paragraph (a) of this Section, and
renew, extend or replace such liens, provided that at the time of such
creation, assumption, renewal, extension or replacement, and after
giving effect thereto, Exempted Debt does not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 4.4 Certain Sale and Lease-back Transactions. (a)
The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer, directly or indirectly, except to the Company or
a Restricted Subsidiary, any Principal Property as an entirety, or any
substantial portion thereof, with the intention of taking back a lease
of such property, except a lease for a period of three years or less
at the end of which it is intended that the use of such property by
the lessee will be discontinued; provided that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may sell any such
Principal Property and lease it back for a longer period (i) if the
Company or such Restricted Subsidiary would be entitled, pursuant to
the provisions of Section 4.3(a), to create a mortgage on the property
to be leased securing Funded Debt in an amount equal to the
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Attributable Debt with respect to such sale and lease-back transaction
without equally and ratably securing the outstanding Securities or
(ii) if (A) the Company promptly informs the Trustee of such
transaction, (B) the net proceeds of such transaction are at least
equal to the fair value (as determined by Board Resolution of the
Company) of such property and (C) the Company causes an amount equal
to the net proceeds of the sale to be applied to the retirement,
within 180 days after receipt of such proceeds, of Funded Debt
incurred or assumed by the Company or a Restricted Subsidiary
(including the Securities); provided further that, in lieu of applying
all of or any part of such net proceeds to such retirement, the
Company may, within 75 days after such sale, deliver or cause to be
delivered to the applicable trustee for cancellation either debentures
or notes evidencing Funded Debt of the Company (which may include the
Outstanding Securities) or of a Restricted Subsidiary previously
authenticated and delivered by the applicable trustee, and not
theretofore tendered for sinking fund purposes or called for a sinking
fund or otherwise applied as a credit against an obligation to redeem
or retire such notes or debentures, and an Officers' Certificate
(which shall be delivered to the Trustee and each paying agent and
which need not contain the statements prescribed by the second
paragraph of Section 10.4) stating that the Company elects to deliver
or cause to be delivered such debentures or notes in lieu of retiring
Funded Debt as hereinabove provided. If the Company shall so deliver
debentures or notes to the applicable trustee and the Company shall
duly deliver such Officers' Certificate, the amount of cash which the
Company shall be required to apply to the retirement of Funded Debt
under this Section 4.4(a) shall be reduced by an amount equal to the
aggregate of the then applicable optional redemption prices (not
including any optional sinking fund redemption prices) of such
debentures or notes or, if there are no such redemption prices, the
principal amount of such debentures or notes; provided, that in the
case of debentures or notes which provide for an amount less than the
principal amount thereof to be due and payable upon a declaration of
the maturity thereof, such amount of cash shall be reduced by the
amount of principal of such debentures or notes that would be due and
payable as of the date of such application upon a declaration of
acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this Section
4.4, the Company or any Restricted Subsidiary may enter into sale and
lease-back transactions in addition to those permitted by paragraph
(a) of this Section 4.4 and without any obligation to retire any
outstanding Securities or other Funded Debt, provided that at the time
of entering into such sale and lease-back transactions and after
giving effect thereto, Exempted Debt does not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 4.5 Notice of Defaults. In the event that the
Company becomes aware of any Default, the Company, promptly after it
becomes aware thereof, will give written notice thereof to the
Trustee.
SECTION 4.6 Compliance Certificates; Reports.
(a) The Company shall deliver to the Trustee, within 45 days
after the end of each fiscal quarter (90 days after the end of the
last fiscal quarter of each year), an Officers' Certificate stating
61
whether or not the signers know of any Default that occurred during
such fiscal quarter. In the case of the Officers' Certificate
delivered within 90 days of the end of the Company's fiscal year, such
certificate shall contain a certification from the principal executive
officer, principal financial officer or principal accounting officer
that a review has been conducted of the activities of the Company and
its Subsidiaries and the Company's and its Subsidiaries' performance
under this Indenture and that the Company has complied with all
conditions and covenants under this Indenture. For purposes of this
Section 4.6, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this
Indenture. If a Default shall have occurred and be continuing, the
certificate shall describe such Default and its status. The first
certificate to be delivered pursuant to this Section 4.6(a) shall be
for the first fiscal quarter beginning after the execution of this
Indenture.
(b) The Company shall deliver to the Trustee, within 90 days
after the end of the Company's fiscal year, a certificate signed by
the Company's independent certified public accountants stating (i)
that their audit examination has included a review of the terms of
this Indenture and the Securities as they relate to accounting
matters, (ii) that they have read the most recent Officers'
Certificate delivered to the Trustee pursuant to paragraph (a) of this
Section 4.6 and (iii) whether, in connection with their audit
examination, anything came to their attention that caused them to
believe that the Company was not in compliance with any of the terms,
covenants, provisions or conditions of Article 4 and Section 5.1 of
this Indenture as they pertain to accounting matters and, if any
Default has come to their attention, specifying the nature and period
of existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason
of any failure to obtain knowledge of any such Default that would not
be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards in effect at the
date of such examination.
(c) Within 90 days of the end of each of the Company's
fiscal years, the Company shall deliver to the Trustee a list of all
Significant Subsidiaries. The Trustee shall have no duty with respect
to any such list except to keep it on file and available for
inspection by the Holders.
(d) The Company shall deliver to the Trustee all reports
filed with the Commission reasonably promptly following the filing
thereof.
SECTION 4.7 Waiver of Stay, Extension or Usury 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 or any usury law or other law that would prohibit or
forgive the Company from paying all or any portion of the principal
of, or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company 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
62
power as though no such law had been enacted.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company shall
not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property
and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person (other
than a consolidation with or merger with or into a Subsidiary) or
permit any Person to merge with or into the Company unless:
(i) either (x) the Company shall be the continuing Person or (y)
the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that
acquired or leased such property and assets of the Company shall
be a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company
on all of the Securities and under this Indenture and the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that such consolidation, merger or transfer and such supplemental
indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have
been complied with; and
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
SECTION 5.2 Successor Substituted. Upon any consolidation
or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of
the Company in accordance with Section 5.1 of this Indenture, the
successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, transfer, lease
or other disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been
named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default" shall
occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the principal of any
Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption, mandatory repurchase or
otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable,
and such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
63
respect to any Security of such series or in the Securities of
such series and such default or breach continues for a period of
30 consecutive days after written notice to the Company by the
Trustee or to the Company and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Securities of such
series;
(d) an involuntary case or other proceeding shall be commenced
against the Company with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered
against the Company under the federal bankruptcy laws as now or
hereafter in effect;
(e) the Company (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to
the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or for all or substantially all of the
property and assets of the Company or (C) effects any general
assignment for the benefit of creditors; or
(f) any other Event of Default established with respect to the
Securities of such series pursuant to Section 2.3 occurs.
SECTION 6.2 Acceleration. If an Event of Default described
in clauses (a) or (b) of Section 6.1 with respect to the Securities of
any series or in clauses (c) or (f) of Section 6.1 with respect to the
Securities of one or more but not all series then outstanding occurs
and is continuing, then, and in each and every such case, except for
any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of each such
series then outstanding hereunder (each such series voting as a
separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified
in the terms of such series established pursuant to Section 2.3) of
all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable. If an Event of
Default described in clause (c) or (f) of Section 6.1 with respect to
the Securities of all series then outstanding occurs and is
continuing, then and in each and every such case, unless the principal
of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then outstanding (treated as
one class), by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of
64
the principal as may be specified in the terms thereof established
pursuant to Section 2.3) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or,
if any Securities are original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof established
pursuant to Section 2.3) of all the Securities then outstanding and
interest accrued thereon, if any, shall be and become immediately due
and payable, without any notice or other action by any Holder or the
Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established
pursuant to Section 2.3) of the Securities of any series (or of all
the Securities, as the case may be) shall have been so declared due
and payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all
the Securities of each such series (or of all the Securities, as the
case may be) and the principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such
principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest,
at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
Securities of each such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein, then and
in every such case the Holders of a majority in aggregate principal
amount of all the Securities of each such series (each such series
voting as a separate class), or of all the Securities (voting as a
single class), then outstanding, by written notice to the Company and
to the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration
has been rescinded and annulled, the principal amount of such Original
Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all
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other amounts owing thereunder, shall constitute payment in full of
such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If an Event of Default with
respect to the Securities of any series occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an express trust,
any available remedy by proceeding at law or in equity to collect the
payment of principal of and interest on the Securities of such series
or to enforce the performance of any provision of the Securities of
such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal
amount of the outstanding Securities of each series affected (each
such series voting as a separate class), by notice to the Trustee, may
waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in
the payment of principal of or interest on any Security as specified
in clause (a) or (b) of Section 6.1 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series
arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 Control by Majority. The Holders of at least a
majority in aggregate principal amount of the outstanding Securities
of each series affected (each such series voting as a separate class)
may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series
by this Indenture; provided, that the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve
the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders not
joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any Security
of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
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(ii) the Holders of at least 25% in aggregate principal amount
ofoutstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any
costs, liabilities and expenses to be incurred in compliance with
such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such
series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of or
interest, if any, on such Holder's Security on or after the respective
due dates expressed on such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of
principal or interest specified in clause (a) or (b) of Section 6.1
occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the
whole amount (or such portion thereof as specified in the terms
established pursuant to Section 2.3 of Original Issue Discount
Securities) of principal of, and accrued interest remaining unpaid on,
together with interest on overdue principal of, and, to the extent
that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each
case at the rate or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, and such further
amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due the Trustee under Section 7.7)
and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive
any monies, securities or other property payable or deliverable upon
conversion or exchange of the Securities or upon any such claims and
to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall
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consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it under Section 7.7.
SECTION 6.10 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or
dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the
several Securities and coupons appertaining to such Securities in
respect of which monies have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such series and
tenor in reduced principal amounts in exchange for the presented
Securities of such series and tenor if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on
the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been col lected shall have become
and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such
series for principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue instal lments of interest
at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insuf
ficient to pay in full the whole amount so due and unpaid upon
the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or
of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
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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 shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Company, Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 6.12 Undertaking for Costs. In any suit for the
enforcementof any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee,
in either case in respect to the Securities of any series, a court may
require any party litigant in such suit (other than the Trustee) to
file an undertaking to pay the costs of the suit, and the court may
assess reasonable costs, including reasonable attorneys' fees, against
any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.12 does not apply to a suit by a
Holder pursuant to Section 6.7 or a suit by Holders of more than 10%
in principal amount of the outstanding Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities in Section
2.8, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or
remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 6
or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set
forth herein. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, unless it receives indemnity satisfactory to it against any
loss, liability or expense.
Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
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provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to
Trust Indenture Act Sections 315(a) through (d):
(i) 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
person. The Trustee need not investigate any fact or matter
stated in the document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable
for any action it takes or omits to take in good faith in
reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(iv) 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, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits
to take in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Securities of any
series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture; and
(vi) 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.
SECTION 7.3 Individual Rights of Trustee. The Trustee, in
its individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not the
Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Trust Indenture Act Sections 310(b) and 311.
For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
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incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 7.4 Trustee's Disclaimer. Neither the Trustee nor
any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities, (ii) shall be
accountable for the Company's use or application of the proceeds from
the Securities or (iii) shall be responsible for any statement in the
Securities other than its certificate of authentication.
SECTION 7.5 Notice of Default. If any Default
with respect to the Securities of any series occurs and is continuing
and if such Default is known to any Responsible Officer of the
Trustee, the Trustee shall give to each Holder of Securities of such
series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to
the Holders thereof, by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized
Newspaper in London and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, unless such Default shall have been cured or
waived before the mailing or publication of such notice; provided,
however, that, except in the case of a Default in the payment of the
principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if 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 interests of the
Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days
after each May 15, beginning with May 15, 1995, the Trustee shall mail
to each Holder as provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company shall
pay to the Trustee such compensation as shall be agreed upon in
writing for its services. The compensation of the Trustee shall not
be limited by any law on compensation of a Trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out-ofpocket expenses, disbursements and advances incurred
or made by the Trustee. Such expenses and disbursements shall include
the reasonable compensation, expenses and disbursements of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it
without negligence or bad faith on its part arising out of or in
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connection with the acceptance or administration of this Indenture and
its duties under this Indenture and the Securities, including the
costs and expenses of defending itself against any claim or liability
and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its
powers or duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of
and interest on particular Securities that is so held prior to the
date the Trustee first incurs expenses or makes disbursements or
advances in connection with collecting any amounts due with respect to
such Securities.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of
any series and appointment of a successor Trustee as Trustee with
respect to the Securities of any series shall become effective only
upon the successor Trustee's acceptance of appointment as provided in
this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee
with respect to the Securities of such series by so notifying the
Trustee in writing and may appoint a successor Trustee with respect
thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if:
(i) the Trustee is no longer eligible under Section 7.10 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or (iv) the Trustee becomes incapable of
acting.
If the Trustee resigns or is removed as Trustee with respect
to the Securities of any series, or if a vacancy exists in the office
of Trustee with respect to the Securities of any series for any
reason, the Company shall promptly appoint a successor Trustee with
respect thereto. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the
outstanding Securities of such series may appoint a successor Trustee
in respect of such Securities to replace the successor Trustee
appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance
required by the next succeeding paragraph of this Section 7.8 within
30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal amount
of the outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after the delivery of
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such written acceptance, subject to the lien provided for in Section
7.7, (i) the retiring Trustee shall transfer all property held by it
as Trustee in respect of the Securities of such series to the
successor Trustee, (ii) the resignation or removal of the retiring
Trustee in respect of the Securities of such series shall become
effective and (iii) the successor Trustee shall have all the rights,
powers and duties of the Trustee in respect of the Securities of such
series under this Indenture. A successor Trustee shall mail notice of
its succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers
and trusts referred to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee in respect of the
Securities of such series to all Holders of Securities of such series.
Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to
the Securities of any series pursuant to this Section 7.8, the
Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving
or transferee corporation or national banking association without any
further act shall be the successor Trustee with the same effect as if
the successor Trustee had been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always have
a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and surplus
of at least $25,000,000 as set forth in its most recent published
annual report of condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee
may agree with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by
law and except for money held in trust under Article 8 of this
Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment. Except
as otherwise provided in this Section 8.1, the Company may terminate
its obligations under the Securities of any series and this Indenture
with respect to Securities of such series if:
(i) all Securities of such series previously authenticated
and delivered (other than destroyed, lost or stolen Securities of
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such series that have been replaced or Securities of such series
that are paid pursuant to Section 4.1 or Securities of such
series for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as
provided in Section 8.5) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it
hereunder; or
(ii) (A) the Securities of such series mature within one
year or all of them are to be called for redemption within one
year under arrangements satisfactory to the Trustee for giving
the notice of redemption, (B) the Company irrevocably deposits in
trust with the Trustee, as trust funds solely for the benefit of
the Holders of such Securities for that purpose, money or U.S.
Government Obligations or a combination thereof sufficient (in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any
reinvestment, to pay principal of and interest on the Securities
of such series to maturity or redemption, as the case may be, and
to pay all other sums payable by it hereunder, (C) no Default
with respect to the Securities of such series has occurred and is
continuing on the date of such deposit, (D) such deposit does not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound and (E) the
Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and
discharge of this Indenture with respect to the Securities of
such series and of the Securities of such series have been
complied with. With respect to the foregoing clause (i), only the
Company's obligations under Section 7.7 in respect of the
Securities of such series shall survive. With respect to the
foregoing clause (ii), only the Company's obligations in Sections
2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 4.2, 7.7, 7.8, 8.5 and 8.6 in
respect of the Securities of such series shall survive until the
Securities of such series are no longer outstanding. Thereafter,
only the Company's obligations in Sections 7.7, 8.5 and 8.6 in
respect of the Securities of such series shall survive. After any
such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations
under the Securities of such series and this Indenture with
respect to the Securities of such series except for those
surviving obligations specified above.
SECTION 8.2 Defeasance at Any Time. Except as otherwise
provided in this Section 8.2, after the period specified in clause
(D)(2)(z) of this Section 8.2, the Company will be deemed to have paid
and will be discharged from any and all obligations in respect of the
Securities of any series, the provisions of this Indenture will no
longer be in effect with respect to the Securities of such series, and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same; provided that the following
conditions shall have been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of
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the Securities of such series for payment of the principal of and
interest on the Securities of such series, money or U.S.
Government Obligations or a combination thereof sufficient (in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee) withoutconsideration of any
reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable
by the Trustee, to pay and discharge the principal of and accrued
interest on the outstanding Securities of such series to maturity
or earlier redemption (irrevocably provided for under arrangement
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is
bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit
or at any time during the period specified in clause (D)(2)(z)
below;
(D) the Company shall have delivered to the Trustee (1) either
(x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the Securities
of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise
of its option under this Section 8.2 and will be subject to
federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had
not been exercised or (y) an Opinion of Counsel to the same
effect as the ruling described in clause (x) above and based upon
a change in law and (2) an Opinion of Counsel to the effect that
(x) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, as amended, (y) the Holders of
the Securities of such series have a valid security interest in
the trust funds, and (z) after the passage of 123 days following
the deposit (except after one year following the deposit, with
respect to any trust funds for the account of any Holder of the
Securities of such series who may be deemed to be an "insider" as
to an obligor on the Securities of such series for purposes of
the United States Bankruptcy Code), the trust funds will not be
subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law in a case commenced by or against the Company under either
such statute, and either (I) the trust funds will no longer
remain the property of the Company (and therefore will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally) or (II) if a court were to rule under any such law in
any case or proceeding that the trust funds remained the property
of the Company, to the extent not paid to such Holders, the
Trustee will hold, for the benefit of such Holders, a valid and
perfected first priority security interest in such trust funds
that is not avoidable in bankruptcy or otherwise (except for the
effect of Section 552(b) of the United States Bankruptcy Code on
interest on the trust funds accruing after the commencement of a
case under such statute) and the Holders of the Securities of
such series will be entitled to receive adequate protection of
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their interests in such trust funds if such trust funds are used
in such case or proceeding;
(E) if the Securities of such series are thenlisted on a
national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the
defeasance contemplated by this Section 8.2 of the Securities of
such series will not cause the Securities of such series to be
delisted; and
(F) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.2 of the Securities of
such series have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-
day (or one year) period referred to in clause (D)(2)(z) of this
Section 8.2, none of the Company's obligations under this Indenture
with respect to the Securities of such series shall be discharged.
Subsequent to the end of such 123-day (or one year) period, the
Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11,
4.2, 7.7, 7.8, 8.5 and 8.6 with respect to the Securities of such
series shall survive until such Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7, 8.5 and
8.6 with respect to the Securities of such series shall survive. If
and when a ruling from the Internal Revenue Service or an Opinion of
Counsel referred to in clause (D)(1) of this Section 8.2 is able to be
provided specifically without regard to, and not in reliance upon, the
continuance of the Company's obligations under Section 4.1, then the
Company's obligations under such Section 4.1 with respect to the
Securities of such series shall cease upon delivery to the Trustee of
such ruling or Opinion of Counsel and compliance with the other
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2.
SECTION 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.3
and 4.4 and such omission shall be deemed not to be an Event of
Default under clause (c) of Section 6.1, with respect to the
outstanding Securities of any series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of
the Securities of such series for payment of the principal of and
interest, if any, on the Securities of such series money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments
in respect thereof payable by the Trustee, to pay and discharge
the principal of and interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as
the case may be;
(ii) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
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(iii) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such
deposit;
(iv) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (A) the creation of the
defeasance trust does not violate the Investment Company Act of
1940, as amended, (B) the Holders of the Securities of such
series have a valid first priority security interest in the trust
funds, (C) such Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to federal income tax on
the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred and (D) after the passage of 123 days following the
deposit (except after one year following the deposit, with
respect to any trust funds for the account of any Holder of the
Securities of such series, who may be deemed to be an "insider"
as to an obligor on the Securities of such series for purposes of
the United States Bankruptcy Code), the trust funds will not be
subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law in a case commenced by or against the Company under either
such statute, and either (1) the trust funds will no longer
remain the property of the Company (and therefore will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally) or (2) if a court were to rule under any such law in
any case or proceeding that the trust funds remained property of
the Company, to the extent not paid to such Holders, the Trustee
will hold, for the benefit of such Holders, a valid and perfected
first priority security interest in such trust funds that is not
avoidable in bankruptcy or otherwise (except for the effect of
Section 552(b) of the United States Bankruptcy Code on interest
on the trust funds accruing after the commencement of a case
under such statute), and the Holders of the Securities of such
series will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in
such case or proceeding;
(v) if the Securities of such series are then listed on a
national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the covenant
defeasance contemplated by this Section 8.3 of the Securities of
such series will not cause the Securities of such series to be
delisted; and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the
covenant defeasance contemplated by this Section 8.3 of the
Securities of such series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to Section
8.5, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.1, 8.2
or 8.3, as the case may be, in respect of the Securities of any series
and shall apply the deposited money and the proceeds from deposited
U.S. Government Obligations in accordance with the Securities of such
series and this Indenture to the payment of principal of and interest
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on the Securities of such series; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.5 Repayment to Company. Subject to Sections 7.7,
8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay
to the Company upon request set forth in an Officers' Certificate any
excess money held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed
for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the
expense of the Company once in a newspaper of general circulation in
the City of New York or mail to each Holder entitled to such money at
such Holder's address (as set forth in the Security Register) notice
that such money remains unclaimed and that after a date specified
therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for
payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent
with respect to such money shall cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in
accordance with Section 8.1, 8.2 or 8.3, as the case may be, in
respect of the Securities of any series by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture with
respect to the Securities of such series and the Securities of such
series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.1, 8.2 or 8.3, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with
Section 8.1, 8.2 or 8.3, as the case may be in respect of the
Securities of such series; provided that, if the Company has made any
payment of principal of or interest on any Securities of such series
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities
of any series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material
respect;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the
Trust Indenture Act;
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(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by
a successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as
permitted by Section 2.3;
(6) to provide for uncertificated Securities and to make all
appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
SECTION 9.2 With Consent of Holders. Subject to Sections 6.4
and 6.7, without prior notice to any Holders, the Company and the
Trustee may amend this Indenture and the Securities of any series with
the written consent of the Holders of a majority in principal amount
of the outstanding Securities of all series affected by such
supplemental indenture (all such series voting as one class), and the
Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as
one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder of the Securities of each series affected
thereby, an amendment or waiver, including a waiver pursuant to
Section 6.4, may not:
(i) extend the stated maturity of the principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the principal amount thereof or the
rate of interest thereon (including any amount in respect of
original issue discount), or any premium payable with respect
thereto, or adversely affect the rights of such Holder under any
mandatory repurchase provision or any right of repurchase at the
option of such Holder, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section
6.2 or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Security of
such series or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the stated maturity thereof (or, in the
case of redemption, on or after the redemption date or, in the
case of mandatory repurchase, the date therefor);
(ii) reduce the percentage in principal amount of outstanding
Securities of such series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of or interest
on, any Security of such series;
(iv) cause any Security of such series to be subordinated in
right of payment to any obligation of the Company;
(v) modify any of the provisions of this Section 9.2, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security of any
series affected thereby.
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A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series
with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of
any other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected
thereby a notice briefly describing the amendment, supplement or
waiver. The Company will mail supplemental indentures to Holders upon
request. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is
a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is
not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or
waiver shall become effective with respect to the Securities of any
series affected thereby on receipt by the Trustee of written consents
from the Holders of the requisite percentage in principal amount of
the outstanding Securities of such series.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders
of the Securities of any series affected entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the immediately preceding paragraph, those Persons who
were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously
given, whether or not such Persons continue to be such Holders after
such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall
bind every Holder of such Securities unless it is of the type
described in any of clauses (i) through (v) of Section 9.2. In case
of an amendment or waiver of the type described in clauses (i) through
(v) of Section 9.2, the amendment or waiver shall bind each such
Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the
consenting Holder.
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SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security of any
series, the Trustee may require the Holder thereof to deliver it to
the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder and the
Trustee may place an appropriate notation on any Security of such
series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9
is authorized or permitted by this Indenture. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement
or waiver if the same does not adversely affect the rights of the
Trustee. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall
conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939. This Indenture
shall incorporate and be governed by the provisions of the Trust
Indenture Act that are required to be part of and to govern indentures
qualified under the Trust Indenture Act.
SECTION 10.2 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when
received or (b) if mailed by first class mail when so mailed, or (c)
if sent by facsimile transmission, when transmission is confirmed, in
each case addressed as follows:
if to the Company:
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762-6999 Telecopy: (501) 290-
4061 Attention: Treasurer
if to the Trustee:
The Chase Manhattan Bank, N.A. 4 Chase MetroTech Center
Brooklyn, New York 11245 Telecopy: (718) 242-5886
Attention: Corporate Trust
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
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Holders of any Unregistered Securities, by publication at least once
in an Authorized Newspaper in The City of New York, and at least once
in an Authorized Newspaper in London, and by mailing to the Holders
thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and to Holders of
Registered Securities by mailing to such Holders at their addresses as
they shall appear on the Securities Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of
any such communication or notice to a Holder shall also be mailed to
the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Except as otherwise provided in this Indenture, if a notice
or communication is mailed in the manner provided in this Section
10.2, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
SECTION 10.3 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the
Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 10.4 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance by or on behalf
of the Company with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
SECTION 10.5 Evidence of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any coupon as
the absolute owner of such Unregistered Security or coupon (whether or
not such Unregistered Security or coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all
other purposes and neither the Company, the Trustee, nor any agent of
the Company or the Trustee shall be affected by any notice to the
contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of
his holding the same, may be proved by the production of such Security
or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the
Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state
that on the date thereof a Security bearing a specified identifying
number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities
specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later
date issued in respect of the same Securities shall be produced, or
(2) the Security specified in such certificate shall be produced by
some other Person, or (3) the Security specified in such certificate
shall have ceased to be outstanding. Subject to Article 7, the fact
and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument
may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a
certificate of the Registrar.
SECTION 10.6 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 10.7 Payment Date Other Than a Business Day. If
any date for payment of principal or interest on any Security shall
not be a Business Day at any place of payment, then payment of
principal of or interest on such Security, as the case may be, need
not be made on such date, but may be made on the next succeeding
Business Day at any place of payment with the same force and effect as
if made on such date and no interest shall accrue in respect of such
payment for the period from and after such date.
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SECTION 10.8 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture or loan
or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this
Indenture.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.12 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 10.13 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or
restrict any of the terms and provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
TYSON FOODS, INC.
as Issuer
By:
Name:
Title:
THE CHASE MANHATTAN BANK, N.A. as
Trustee
By:
Name:
Title:
_______________________________
*Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
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