Exhibit 4.4
RESOURCE MORTGAGE CAPITAL, INC.
AND
Trustee
Indenture
Dated as of , 199
Senior Debt Securities
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . 3
Common Shares . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . 4
European Monetary System . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . 5
GAAP . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . 6
i
Officers' Certificate . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . 8
Preferred Shares . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . 9
Repayment Date . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . 9
Security . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . 10
Significant Subsidiary . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . 11
United States person . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions. 11
SECTION 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . 12
SECTION 104. Acts of Holders . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company 15
SECTION 106. Notice to Holders; Waiver . . . . . . 15
SECTION 107. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . 17
SECTION 108. Successors and Assigns. . . . . . . . 17
SECTION 109. Separability Clause . . . . . . . . . 17
SECTION 110. Benefits of Indenture . . . . . . . . 17
SECTION 111. Governing Law . . . . . . . . . . . . 17
SECTION 112. Legal Holidays. . . . . . . . . . . . 17
SECTION 113. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. . . 18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . 19
SECTION 203. Securities Issuable in Global Form. . 19
ii
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. 20
SECTION 302. Denominations . . . . . . . . . . . . 25
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . 25
SECTION 304. Temporary Securities . . . . . . . . 28
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . . . . 31
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . 35
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . 37
SECTION 308. Persons Deemed Owners . . . . . . . . 39
SECTION 309. Cancellation . . . . . . . . . . . . 40
SECTION 310. Computation of Interest . . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . 41
SECTION 402. Application of Trust Funds . . . . . 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . 43
SECTION 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . 45
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee . . 46
SECTION 504. Trustee May File Proofs of Claim . . 47
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . 48
SECTION 506. Application of Money Collected . . . 48
SECTION 507. Limitation on Suits . . . . . . . . . 49
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium, if any,
Interest and Additional Amounts . . . 50
SECTION 509. Restoration of Rights and Remedies . 50
SECTION 510. Rights and Remedies Cumulative . . . 50
SECTION 511. Delay or Omission Not Waiver . . . . 50
SECTION 512. Control by Holders of Securities . . 51
SECTION 513. Waiver of Past Defaults . . . . . . . 51
SECTION 514. Waiver of Usury, Stay or Extension
Laws . . . . . . . . . . . . . . . . 51
SECTION 515. Undertaking for Costs . . . . . . . . 52
iii
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . 52
SECTION 602. Certain Rights of Trustee . . . . . . 53
SECTION 603. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . 54
SECTION 604. May Hold Securities . . . . . . . . . 55
SECTION 605. Money Held in Trust . . . . . . . . . 55
SECTION 606. Compensation and Reimbursement . . . 55
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests . 56
SECTION 608. Resignation and Removal;
Appointment of Successor. . . . . . . 56
SECTION 609. Acceptance of Appointment by Successor 58
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . 59
SECTION 611. Appointment of Authenticating Agent. . 60
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses
of Holders . . . . . . . . . . . . . 62
SECTION 702. Reports by Trustee . . . . . . . . . 62
SECTION 703. Reports by Company . . . . . . . . . 62
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . 63
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company
and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions 63
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . 64
SECTION 803. Officers' Certificate and Opinion of
Counsel . . . . . . . . . . . . . . . 65
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without
Consent of Holders . . . . . . . . . 65
iv
SECTION 902. Supplemental Indentures with Consent
of Holders. . . . . . . . . . . . . . 67
SECTION 903. Execution of Supplemental Indentures 68
SECTION 904. Effect of Supplemental Indentures . . 68
SECTION 905. Conformity with Trust Indenture Act . 68
SECTION 906. Reference in Securities to
Supplemental Indentures . . . . . . . 69
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if
any, Interest and Additional Amounts 69
SECTION 1002. Maintenance of Office or Agency . . 69
SECTION 1003. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . 71
SECTION 1004. Existence . . . . . . . . . . . . . 73
SECTION 1005. Maintenance of Properties . . . . . 73
SECTION 1006. Payment of Taxes and Other
Claims . . . . . . . . . . . . . . . 74
SECTION 1007. Statement as to Compliance . . . . . 74
SECTION 1008. Additional Amounts . . . . . . . . . 74
SECTION 1009. Waiver of Certain Covenants . . . . 76
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . 76
SECTION 1102. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . 76
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . 76
SECTION 1104. Notice of Redemption . . . . . . . . 77
SECTION 1105. Deposit of Redemption Price . . . . 79
SECTION 1106. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 79
SECTION 1107. Securities Redeemed in Part . . . . 80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . 80
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities . . . . . . 81
SECTION 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . 81
v
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . 82
SECTION 1302. Repayment of Securities . . . . . . 82
SECTION 1303. Exercise of Option . . . . . . . . . 83
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable . . 83
SECTION 1305. Securities Repaid in Part . . . . . 85
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . 85
SECTION 1402. Defeasance and Discharge . . . . . . 85
SECTION 1403. Covenant Defeasance . . . . . . . . 86
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . 87
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . 89
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vi
RESOURCE MORTGAGE CAPITAL, INC.
Reconciliation and tie between Trust Indenture Act of 1939 (the
"1939 Act") and Indenture, dated as of , 1994
Trust Indenture Act Section Indenture Section
310(a)(1) .............................. 607
(a)(2) .............................. 607
(b) .................................. 607, 608
312(a) .................................. 704
312(c) .................................. 701
313(a) .................................. 702
(c) .................................. 702
314(a) .................................. 703
(a)(4) .............................. 1009
(c)(1) .............................. 102
(c)(2) .............................. 102
(e) .................................. 102
315(b) .................................. 601
316(a) (last sentence) ................. 101 ("Outstanding")
(a)(1)(A) ........................... 512
(a)(1)(B) ........................... 513
(b) ................................. 508
317(a)(1) .............................. 503
(a)(2) .............................. 504
318 (a) ................................. 111
(c) ................................. 111
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of
the 1939 Act, which provides that the provisions of Sections 310
to and including 317 of the 1939 Act are a part of and govern
every qualified indenture, whether or not physically contained
therein.
vii
INDENTURE, dated as of , between
RESOURCE MORTGAGE CAPITAL, INC., a corporation organized under
the laws of Virginia (hereinafter called the "Company"), having
its principal office at 10500 Little Patuxent Parkway, Columbia,
Maryland 21044 , a corporation
organized under the laws of , as Trustee
hereunder (hereinafter called the "Trustee"), having its
Corporate Trust Office at
.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to
time for its lawful purposes senior debt securities (hereinafter
called the "Securities") evidencing its unsecured and
unsubordinated indebtedness, and has duly authorized the
execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to
principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall
be fixed as hereinafter provided.
This Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended ("TIA"), that are deemed
to be incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the holders thereof ("Holders"),
it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined
in the TIA, either directly or by reference therein, have
the meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper", as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
GAAP; and
(4) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Additional Amounts" means any additional amounts which
are required by a Security or by or pursuant to a Board
Resolution, under circumstances specified therein, to be paid by
the Company in respect of certain taxes imposed on certain
Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in
the English language or in an official language of the country
of publication, customarily published on each Business Day,
whether or not published on Saturdays, Sundays or holidays, and
of general circulation in each place in connection with which
the term is used or in the financial community of each such
place. Whenever successive publications are required to be made
in Authorized Newspapers, the successive publications may be
made in the same or in different Authorized Newspapers in the
same city meeting the foregoing requirements and in each case on
any Business Day.
"Bankruptcy Law" has the meaning specified in Section
501.
"Bearer Security" means any Security established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of
the Company, the executive committee or any committee of that
board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise
specified with respect to any Securities pursuant to Section
301, any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions in that
Place of Payment or particular location are authorized or
required by law, regulation or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs
Mobilieres, S.A., or its successor.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or, if at any time after
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such
date.
"Common Shares" means, with respect to any Person,
capital stock issued by such Person other than Preferred Stock.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" and "Company Order" mean,
respectively, a written request or order signed in the name of
the Company by one trustee and one executive officer of the
Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which
issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or
(iii) any currency unit (or composite currency) other than the
ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the
Trustee at which, at any particular time, its corporate trust
business shall be principally administered, which office at the
date hereof is located at
.
"corporation" includes corporations, associations,
partnerships, companies and business trusts.
"coupon" means any interest coupon appertaining to a
Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in
Section 307.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at
the time shall be legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Euroclear" means Morgan Guaranty Trust Company of New
York, Brussels Office, or its successor as operator of the
Euroclear System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the
European Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Event of Default" has the meaning specified in Article
Five.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU
issued by the government of one or more countries other than the
United States of America or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles,
as in effect from time to time, as used in the United States
applied on a consistent basis.
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America
or such government which issued the foreign currency in which
the Securities of such series are payable, the payment of which
is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other
government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such
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 Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced
by such depository receipt.
"Holder" means, in the case of a Registered Security,
the Person in whose name a Security is registered in the
Security Register and, in the case of a Bearer Security, the
bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established
as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or
more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however,
of any provisions or terms which relate solely to other series
of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of
any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such
Person had become such Trustee but to which such Person, as such
Trustee, was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, shall mean interest payable after Maturity, and, when
used with respect to a Security which provides for the payment
of Additional Amounts pursuant to Section 1008, includes such
Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of
interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company or who may be an
employee of or other counsel for the Company and who shall be
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption or repayment at the option of the
Holder money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in
Sections 1402 and 1403, with respect to which the Company
has effected defeasance and/or covenant defeasance as
provided in Article Fourteen;
(iv) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Common Shares or
Preferred Shares pursuant to or in accordance with this
Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting
of Holders for quorum purposes, and for the purpose of making
the calculations required by TIA Section 313, (i) the principal
amount of an Original Issue Discount Security that may be
counted in making such determination or calculation and that
shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall
have been declared to be) due and payable, at the time of
such determination, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal
amount of any Security denominated in a Foreign Currency that
may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as
of the date such Security is originally issued by the Company,
of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such
determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant
to Section 301, and (iv) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or
of such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or
interest on any Securities or coupons on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of or within any series, means the place or places
where the principal of (and premium, if any) and interest on
such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to
which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Shares" means, with respect to any Person,
capital shares issued by such Person that are entitled to a
preference or priority over any other capital shares issued by
such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"Redemption Date", when used with respect to any
Security to be redeemed, in whole or in part, means the date
fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any
Security to be repaid at the option of the Holder, the date
fixed for such repayment by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at
which it is to be repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive
committee of the board of directors, the president, any vice
president (whether or not designated by a number or a word or
words added before or after the title "vice president") the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, any corporate trust officer, the controller or any
other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Security" has the meaning stated in the first recital
of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is
not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is
a "significant subsidiary" (as defined in Article I, Rule 1-02
of Regulation S-X, promulgated under the Securities Act of 1933)
of the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries
of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939, as amended and as in force at the date as
of which this Indenture was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder; provided, however,
that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United
States of America (including the states and the District of
Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States person" means, unless otherwise
specified with respect to any Securities pursuant to Section
301, an individual who is a citizen or resident of the United
States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or an estate
or trust the income of which is subject to United States federal
income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity,
computed at the time of issuance of a Security (or, if
applicable, at the most recent redetermination of interest on
such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(including certificates delivered pursuant to Section 1008)
shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or
more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, or a certificate or representations by
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion
of Counsel or certificate or representations may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters
is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or
more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Securities of
such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of
Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any
such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture. The record of
any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibit, the Bearer Securities therein described;
or such facts may be proved by the certificate or affidavit of
the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company
may, at its option, in or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than
the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
In the absence of any such record date fixed by the
Company, regardless as to whether a solicitation of the Holders
is occurring on behalf of the Company or any Holder, the Trustee
may, at its option, fix in advance a record date for
the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Trustee shall have no obligation to do so.
Any such record date shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection
therewith no later than the date of such solicitation.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at
,
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first
class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Where this
Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a
sufficient notification to such Holders for every purpose
hereunder.
Except as otherwise expressly provided herein or
otherwise specified with respect to any Securities pursuant to
Section 301, where this Indenture provides for notice to Holders
of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in
New York City and in such other city or cities as may be
specified in such Securities on a Business Day, such publication
to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of
such publication or, if published more than once, on the date of
the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of
any other cause it shall be impracticable to publish any notice
to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to any particular Holder
of Bearer Securities as provided above, nor any defect in any
notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities
given as provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 108. Successors and Assigns. All covenants
and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any
provision in this Indenture or in any Security or coupon shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent
and their successors hereunder and the Holders any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law. This Indenture and the
Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York. This
Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of
any series which specifically states that such provision shall
apply in lieu hereof), payment of interest or any Additional
Amounts or principal (and premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity, provided that no interest
shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
SECTION 113. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for
the payment of the principal of or premium, if any, or interest,
if any, on any Security, or for any claim based thereon, or
otherwise in respect of any Security, or based on or in respect
of this Indenture or any indenture supplemental hereto, against
any incorporator, or against any past, present or future
stockholder, director of officers, as such, of the Company or of
any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issue
of Securities.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered
Securities, if any, of each series and the Bearer Securities, if
any, of each series and related coupons shall be in
substantially the forms as shall be established in one or more
indentures supplemental hereto or approved from time to time by
or pursuant to a Board Resolution in accordance with Section
301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture or any indenture supplemental hereto, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section
301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication. Subject to Section 611, the Trustee's
certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
as Trustee
By
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any
such Security shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide
that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the
Person or Persons specified
therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303
shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply
with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in
permanent global form shall be made to the Person or Persons
specified therein.
Nothwithstanding the provisions of Section 308 and
except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat
as the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the
case of a permanent global Security in bearer form, Euroclear or
CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
There shall be established in one or more Board Resolutions or
pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters
set forth in clauses (1), (2) and (15) below) if so provided,
may be determined from time to time by the Company with respect
to unissued Securities of the series when issued from time to
time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all
other series of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of
the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates
from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment
Dates on which such interest will be payable and the Regular
Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the
method by which such date shall be determined, and the basis
upon which interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to the Borough of Manhattan, New York City, where
the principal of (and premium, if any), interest, if any,
on, and Additional Amounts, if any, payable in respect of,
Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration
of transfer, exchange or conversion and notices or demands
to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(6) the period or periods within which, the price or
prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and
other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option
of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provision or at the option of a
Holder thereof, and the period or periods within which or
the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms
and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Registered Securities of the series shall be issuable and,
if other than the denomination of $5,000, the denomination
or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
that shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502 or, if
applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance
with the provisions of this Indenture, or the method by
which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and
premium, if any) or interest or Additional Amounts, if any,
on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on the Securities
of the series may be determined with reference to an index,
formula or other method (which index, formula or method may
be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of
the series are to be payable, at the election of the Company
or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or
currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or
stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies
in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to
the Holders of Securities of the series upon the occurrence
of such events as may be specified;
(15) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with
respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with
or without coupons) or both, any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the
terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice
versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable
initially in temporary global form and whether any
Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and
denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of the series are
to be issuable as a global Security, the identity of the
depositary for such series;
(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of
the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if
other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner
provided in Section 304;
(19) the applicability, if any, of Section 1402 and/or
1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
(20) if the Securities of such 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, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued
upon the exercise of warrants, the time, manner and place
for such Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1010
on the Securities of the series to any Holder who is not a
United States person (including any modification to the
definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(23) the obligation, if any, of the Company to permit
the conversion of the Securities of such series into the
Company's Common Shares or Preferred Shares, as the case may
be, and the terms and conditions upon which such conversion
shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for
purposes of conversion; and
(24) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in
any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities
of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such action(s)
shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. Denominations. The Securities of each
series shall be issuable in such denominations as shall be
specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence
of any such provisions with respect to the Securities of any
series, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and
any integral multiple thereof and the Bearer Securities of such
series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a
denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and
Dating. The Securities and any coupons appertaining thereto
shall be executed on behalf of the Company by a trustee and an
executive officer of the Company and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of
these individuals on the Securities and coupons may be manual or
facsimile signatures of the present or any future such
authorized officer and trustee and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series, together with any coupon appertaining
thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities; provided, however, that, in connection
with its original issuance, no Bearer Security shall be mailed
or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, a Bearer
Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or
CEDEL, as the case may be, in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be
specified with respect to any series of Securities pursuant to
Section 301, dated no earlier than 15 days prior to the earlier
of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable
for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection
with its original issuance of such beneficial owner's interest
in such permanent global Security. Except as permitted by
Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If all the Securities of any series are not to be
issued at one time and if the Board Resolution or supplemental
indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or
formula, maturity date, date of issuance and date from which
interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Section 315(a) through 315(d))
shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any coupons
have been established in conformity with the provisions
of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to
the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee
in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights
generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the issuance of the Securities have been complied with
and that, to the best of the knowledge of the signers of
such certificate, no Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties, obligations or immunities
under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all the Securities of any series are
not to be issued at one time, it shall not be necessary to
deliver an Officers' Certificate otherwise required pursuant to
Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the
preceding paragraph at the time of issuance of each Security of
such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first
Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security or Security to which such
coupon appertains a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are
issued, in registered form, or, if authorized, in bearer form
with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with Section 304(b)
or as otherwise provided in or pursuant to a Board Resolution)
if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series
at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining
thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary
Registered Security; and
provided further that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a
Board Resolution, this Section 304(b) shall govern the exchange
of temporary Securities issued in global form other than through
the facilities of The Depository Trust Company. If any such
temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms
of, any such temporary global Security (the "Exchange Date"),
the Company shall deliver to the Trustee definitive Securities,
in aggregate principal amount equal to the principal amount of
such temporary global Security, executed by the Company. On or
after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without
charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the
portion of such temporary global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is
so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common
Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the
form set forth in Exhibit A-2 to this Indenture or in such other
form as may be
established pursuant to Section 301; and provided further that
definitive Bearer Securities shall be delivered in exchange for
a portion of a temporary global Security only in compliance with
the requirements of Section 303.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a
series in a temporary global Security shall be exchanged for
definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange
on his behalf and delivers to Euroclear or CEDEL, as the case
may be, a certificate in the form set forth in Exhibit A-1 to
this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL, the Trustee,
any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free
of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the
like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated
and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Exchange Date
shall be payable to Euroclear and CEDEL on such Interest Payment
Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2
to this Indenture (or in such other forms as may be established
pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary
global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form
set forth as Exhibit A-1 to this Indenture (or in such other
forms as may be established pursuant to Section 301).
Notwithstanding anything to the
contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of
the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such
certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange
Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no
payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and CEDEL and
not paid as herein provided shall be returned to the Trustee
prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer
and Exchange. The Company shall cause to be kept at the
Corporate Trust Office of the Trustee or in any office or agency
of the Company in a Place of Payment a register for each series
of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security
Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or
any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby appointed "Security Registrar" for the purpose
of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the
event that the Trustee shall cease to be Security Registrar, it
shall have the right to examine the Security Register at all
reasonable times.
Subject to the provisions of this Section 305, upon
surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in
a Place of Payment for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, bearing
a number not contemporaneously outstanding, and containing
identical terms and provisions.
Subject to the provisions of this Section 305, at the
option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like
aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such
Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified
with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) permitted by the applicable Board
Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless.
If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered
Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest,
such
Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. Whenever
any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled
to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any permanent global
Security shall be exchangeable only as provided in this
paragraph. If the depositary for any permanent global Security
is The Depository Trust Company ("DTC"), then, unless the terms
of such global Security expressly permit such global Security to
be exchanged in whole or in part for definitive Securities, a
global Security may be transferred, in whole but not in part,
only to a nominee of DTC, or by a nominee of DTC to DTC, or to a
successor to DTC for such global Security selected or approved
by the Company or to a nominee of such successor to DTC. If at
any time DTC notifies the Company that it is unwilling or unable
to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 if so
required by applicable law or regulation, the Company shall
appoint a successor depositary with respect to such global
Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes
aware of such unwillingness, inability or ineligibility, (y) an
Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of
the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depositary
for such global Security or Securities or (z) the Company, in
its sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no
longer be represented by such global Security or Securities,
then the Company shall execute, and the Trustee shall
authenticate and deliver definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global
Security or Securities. If any beneficial owner of an interest
in a permanent global Security is otherwise entitled to exchange
such interest for Securities of such series and of
like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and
provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute,
and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent
global Security. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other
depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on
the relevant Redemption Date if the Security for which exchange
is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange
for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and the opening of business at such office
or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with
the provisions of this Indenture.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if
so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any
Security if such Security may be among those selected for
redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day
of the mailing of the relevant notice of redemption and (B) if
such Securities are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or,
if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice
of redemption, or (ii) to register the transfer of or exchange
any Registered Security so selected for redemption in whole or
in part, except, in the case of any Registered Security to be
redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided that
such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the
Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the
Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon, and (ii) such security
or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to become due
and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or
stolen coupon appertains, pay such Security or coupon; provided,
however, that payment of principal of (and premium, if any), any
interest on and any Additional Amounts with respect to, Bearer
Securities shall, except as otherwise provided in Section 1002,
be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which
a destroyed, lost or stolen coupon appertains, shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved. Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of
Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered
Security may at the Company's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located
inside the United States.
Unless otherwise provided as contemplated by Section
301 with respect to the Securities of any series, payment of
interest may be made, in the case of a Bearer Security, by
transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section
301, every permanent global Security will provide that interest,
if any, payable on any Interest Payment Date will be paid to
DTC, Euroclear and/or CEDEL, as the case may be, with respect to
that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may
be, for the purpose of permitting such party to credit the
interest received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered
in exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of Payment
for such series) on any Regular Record Date and before the
opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment
Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of
this Indenture.
Except as otherwise specified with respect to a series
of Securities in accordance with the provisions of Section 301,
any interest on any Registered Security of any series that is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee) and at the same time
the Company shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his
address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least
once in an Authorized Newspaper in each place of payment,
but such publications shall not be a condition precedent to
the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the
close of business at such office or agency on any Special
Record Date and before the opening of business at such
office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed
date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due
presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Sections 305 and 307) interest
on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by delivery. The Company, the
Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or
coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or
the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any
global Security, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global
Security, the operation of customary practices governing the
exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of
the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and
any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall
be promptly cancelled by it; provided, however, where the Place
of Payment is located outside of the United States, the Paying
Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the
Securities to the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness
represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and
coupons held by the Trustee shall be destroyed by the Trustee
and the Trustee shall deliver a certificate of such destruction
to the Company, unless by a Company Order the Company directs
their return to it.
SECTION 310. Computation of Interest. Except as
otherwise specified as contemplated by Section 301 with respect
to Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in
such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive
Additional Amounts, and the Trustee, upon receipt of a Company
Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has
been waived as provided in Section 305, (ii) Securities
and coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities
and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for
the purpose (A) an amount of money in the currency or
currencies, currency unit or units or composite
currency or currencies in which the Securities of such
series are payable, (B) Government Obligations that
through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will
provide, not later than on day before the due date of
any payment, money in an amount, or (C) a combination
thereof, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, and
any Additional Amounts with respect thereto, to the
date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any
predecessor Trustee under Section 606, the obligations of the
Company to any Authenticating Agent under Section 611 and, if
money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to
the provisions of the last paragraph of Section 1003, all
amounts deposited with the Trustee pursuant to Section 401 shall
be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to
the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any), and any interest and Additional
Amounts for whose payment such amounts have been deposited with
or received by the Trustee, but such amounts need not be
segregated from other funds except to the extent required by
law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default",
wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the
reason for such Event of Default and whether or not it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body)
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of
that series or of any coupon appertaining thereto, when such
interest, Additional Amounts or coupon becomes due and
payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of
that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture with
respect to any Security of that series (other than a
covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with) and continuance of such default or breach for a period
of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all
of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for
90 days; or
(7) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
title 11, U.S. Code or any similar Federal or State law for the
relief of debtors and the term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under
any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal (or, if any Securities
are Original Issue Discount Securities or Indexed Securities,
such portion of the principal as may be specified in the terms
thereof) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall
become immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and
before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay in the currency or currency unit or
composite currency in which the Securities of such series
are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series):
(A) all overdue installments of interest on and
any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons,
(B) the principal of (and premium, if any, on)
any Outstanding Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal
of (or premium, if any) or interest on Securities of that
series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment
of interest or Additional Amounts, if any, on any Security
of any series and any related coupon when such interest or
Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its
Maturity,
then the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of
such series and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if
any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon any
overdue installments of interest or Additional Amounts, if any,
at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of
such series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities of such
series, wherever situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In
case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities
of such series, of principal (and premium, if any) and
interest and Additional Amounts, if any, owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of
such series and coupons to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of
reorganization, arrangement, adjustment or composition affecting
the Securities or coupons or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. All rights of action and
claims under this Indenture or any of the Securities or coupons
may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected. Any
money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof
if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and
premium, if any) and interest and any Additional Amounts
payable, in respect of which or for the benefit of which
such money has been collected, ratably, without preference
or priority of any kind, according to the aggregate amounts
due and payable on such Securities and coupons for principal
(and premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to
the Company.
SECTION 507. Limitation on Suits. No Holder of any
Security of any series or any related coupon shall have any
right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal
of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such
Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If
the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject
to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay
or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by
the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The
Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining
therein.
SECTION 513. Waiver of Past Defaults. The Holders of
not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law
had been enacted.
SECTION 515. Undertaking for Costs. All parties to
this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such suit of
any undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any
Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after
the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice
of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on or any
Additional Amounts with respect to any Security of such series,
or in the payment of any sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of
the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character
specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders
shall be given until at least 90 days after the occurrence
thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to
the provisions of TIA Section 315(a) through 315(d):
(1) 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,
coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order (other than delivery of any Security,
together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section
303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity reasonably satisfactory to
the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to make
reasonable examination of the books, records and premises of
the Company, personally or by agent or attorney following
reasonable notice to the Company;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
Except during the continuance of an Event of Default,
the Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance
of Securities. The recitals contained herein and in the
Securities, except the Trustee's certificate of authentication,
and in any coupons shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or coupons, except that the
Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform
its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds
thereof.
SECTION 604. May Hold Securities. The Trustee, any
Paying Agent, Security Registrar, Authenticating Agent or any
other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and
coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The
Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements
of its agents and counsel) except any such expense,
disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence
or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6)
or Section 501(7), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for
the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the payment of principal of (or premium, if any) or interest on
particular Securities or any coupons.
The provisions of this Section shall survive the
termination of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee
hereunder which shall be eligible to act as Trustee under TIA
Section 310(a)(1) and shall have a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports
of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article. If the Trustee has or
shall acquire a conflicting interest within the meaning of the
TIA, the Trustee shall either eliminate such interest or resign
to the extent and in the manner provided by and subject to the
provisions of the TIA and this Indenture.
SECTION 608. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
Jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of
a majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause with respect to the Securities of one
or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with
respect to the Securities of any series in the manner provided
for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide
for or facilitate the administration trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in paragraph (a)
or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities or coupons. In case
any Securities or coupons shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may
authenticate and deliver such
Securities or coupons, in either its own name or that of its
predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the
Trustee.
SECTION 611. Appointment of Authenticating Agent. At
any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of
transfer or partial redemption or repayment thereof, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws
of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal
or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities
may at any time resign by giving written notice of resignation
to the Trustee for such series and to the Company. The Trustee
for any series of Securities may at any time terminate the
agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders
of Securities of the series with respect to which such
Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services under
this Section.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
as Trustee
By: ,
as Authenticating Agent
By: ,
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders. Every Holder of Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any Authenticating
Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after
May 15 of each year commencing with the first May 15 after the
first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as
provided in TIA Section 313(c) a brief report dated as of such
May 15 if required by TIA Section 313(a). A copy of each such
report shall at the time of such transmission to Holders be
filed by the Trustee with each stock exchange upon which any
Securities are listed with the Commission and the Company. The
Company will notify the Trustee when any securities are listed
on any stock exchange.
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Company is not required to file information,
documents or reports pursuant to either of such Sections,
then it will file with the Trustee, in accordance with rules
and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than 15 days after the
Regular Record Date for interest for each series of Securities,
a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Registered Securities
of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted Subject to Certain
Conditions. The Company may consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with
or into any other corporation, provided that in any such case,
(1) either the Company shall be the continuing corporation, or
the successor corporation shall be a
corporation organized and existing under the laws of the United
States or a State thereof and such successor corporation shall
expressly assume the due and punctual payment of the principal
of (and premium, if any) and any interest (including all
Additional Amounts, if any, payable pursuant to this Indenture
on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Company
by supplemental indenture, complying with Article Nine hereof,
satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation and (2) immediately after giving
effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a
result thereof as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor
Corporation. In case of any such consolidation, merger, sale,
lease or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as
if it had been named herein as the party of the first part, and
the predecessor corporation, except in the event of a lease,
shall be relieved of any further obligation under this Indenture
and the Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of
such successor corporation, instead of the Company, and subject
to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee for
authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under
this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease
or conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of
Counsel. Any consolidation, merger, sale, lease or conveyance
permitted under Section 801 is also subject to the condition
that the Trustee receive an Officers' Certificate and an Opinion
of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor
corporation, complies with the provisions of this Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent
of Holders. Without the consent of any Holders of Securities or
coupons, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events
of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect
of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such
default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections
201 and 301, including the provisions and procedures
relating to Securities convertible into Common Shares or
Preferred Shares, as the case may be; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such provisions
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any
material respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and
any related coupons or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a
majority in principal amount of all Outstanding Securities
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount
thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts pursuant
to Section 1008 (except as contemplated by Section 801(1)
and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit
or units or composite currency or currencies in which, any
Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any
other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and
delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall, if required by the
Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts. The Company covenants and
agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in
accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect
to any series of Securities, any interest due on and any
Additional Amounts payable in respect of Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable
as provided in Section 1008 in respect of principal of (or
premium, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally
mature. Unless otherwise specified with respect to Securities
of any series pursuant to Section 301, at the option of the
Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If
Securities of a series are issuable only as Registered
Securities, the Company shall maintain in each Place of Payment
for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for
payment or conversion, where Securities of that series may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or
agency. If Securities of a series are issuable as Bearer
Securities, the Company will maintain: (A) in the
Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented
or surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment or
conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or
agency where Securities of that series and related coupons may
be presented and surrendered for payment (including payment of
any Additional Amounts payable on Securities of that series
pursuant to Section 1008) or conversion; provided, however, that
if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (C) subject to
any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States an
office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and
where notices and demand to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of each such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee (except that
Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series
pursuant to Section 1008) or conversion at the offices specified
in the Security, in London, England, and the Company hereby
appoints the same as its agent to receive such presentations,
surrenders, notices and demands), and the Company hereby
appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any
Securities pursuant to Section 301, no payment of principal,
premium or interest on or Additional Amounts in respect of
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained
with a bank located in the United States; provided, however,
that, if the Securities of a series are payable in Dollars,
payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on
Securities of such series pursuant to Section 1008) shall be
made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium, interest
or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by
the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all of such
purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set
forth above for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified
with respect to any Securities pursuant to Section 301 with
respect to a series of Securities, the Company hereby designates
as a Place of Payment for each series of Securities the office
or agency of the Company in the Borough of Manhattan, The City
of New York, and initially appoints the Trustee at its Corporate
Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notice and demands.
Unless otherwise specified with respect to any
Securities pursuant to Section 301, if and so long as the
Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so
long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one
exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held
in Trust. If the Company shall at any time act as its own
Paying Agent with respect to any series of any Securities and
any related coupons, it will, on or before each due date of the
principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency
unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (and premium, if any) or
interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities and any related coupons, it
will, before each due date of the principal of (and premium, if
any), or interest on or Additional Amounts in respect of, any
Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or
interest or Additional Amounts, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless
such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest on Securities
or Additional Amounts in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any such payment of principal (and premium, if
any) or interest or Additional Amounts; and
(3) at any time during the continuance of any Event of
Default upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any
series, any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and
premium, if any), interest or Additional Amounts has become due
and payable shall be paid to the Company upon Company Request or
(if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
of such principal of (and premium, if any) or interest on, or
any Additional Amounts in respect of, any Security, without
interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of
the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight,
the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company.
SECTION 1005. Maintenance of Properties. The Company
will cause all of it properties used or useful in the conduct of
its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times.
SECTION 1006. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it
or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Statement as to Compliance. The Company
will deliver to the Trustee, within 120 days after the end of
each fiscal year, a certificate from the principal executive
officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance
with all conditions and covenants under this Indenture and, in
the event of any noncompliance, specifying such noncompliance
and the nature and status thereof. For purposes of this Section
1004, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 1008. Additional Amounts. If any Securities
of a series provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this
Indenture there is mentioned, in any context except in the case
of Section 502(1), the payment of the principal of or any
premium or interest on, or in respect of, any Security of any
series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series
established pursuant to Section 301 to the extent that, in such
context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of
the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise specified as contemplated by
Section 301, if the Securities of a series provide for the
payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to that series of
Securities or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of
principal and any premium is made, and at least 10 days prior to
each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth
in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be
made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding
for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that
series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by
the terms of such Securities. In the event that the Trustee or
any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying
Agent shall be entitled (i) to assume that no such withholding
or deduction is required with respect to any payment of
principal or interest with respect to any Securities of a series
or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal
and interest with respect to the Securities of a series or
related coupons without withholding or deductions until
otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them or in
reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
SECTION 1009. Waiver of Certain Covenants. The
Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1006,
inclusive, if before or after the time for such compliance the
Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of
any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, at least 45
days prior to the giving of the notice of redemption in Section
1104 (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued
on the same day with the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the
Security Registrar (if other than itself) in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of
redemption shall be given in the manner provided in Section 106,
not less than 30 days nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give
such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
and Additional Amounts, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of
such Security, the holder will receive, without a charge, a
new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for
conversion,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company,
on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy
the requirements for conversion contained in such
Securities, the then existing conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed 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.
SECTION 1105. Deposit of Redemption Price. At least
one Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) sufficient to pay on the Redemption Date the Redemption
Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office
or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities
convertible into Common Stock or Preferred Stock, installments
of interest on Registered Securities whose Stated Maturity is on
or prior to the
Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all
such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any
Registered Security which is to be redeemed only in part
(pursuant to the provisions of this Article or of Article
Twelve) shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The
provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for
Securities of such series.
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 such
Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. The Company may, in satisfaction of all or any
part of any mandatory sinking fund payment with respect to the
Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as
a credit Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
as provided for by the terms of such Securities, or which have
otherwise been acquired by the Company; provided that such
Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking
Fund. Not less than 60 days prior to each sinking fund payment
date for Securities of any series, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of
the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency
or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be
added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the
terms of such Securities, if any, and (except as otherwise
specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of
any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the
principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant
to the terms of such Securities. The Company covenants that at
least one Business Day prior to the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay the
principal (or, if so provided by the terms of the Securities of
any series, a percentage of the principal) of, and (except if
the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any
series subject to repayment at the option of the Holders thereof
will contain an "Option to Elect Repayment" form on the reverse
of such Securities. In order for any Security to be repaid at
the option of the Holder, the Trustee must receive at the Place
of Payment therefor specified in the terms of such Security (or
at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier
than 60 days nor later than 30 days prior to the Repayment Date
(1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the
United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any,
or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date
of such telegram, telex, facsimile transmission or letter;
provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security
and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of
such Security, the principal amount of such Security to be
repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered
that is not to be repaid, must be specified. The principal
amount of any Security providing for repayment at the option of
the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of
the series of which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof,
exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable. If Securities of any series providing
for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by
or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be repaid, except to the extent provided below,
shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all
coupons, if any, appertaining thereto maturing after the
Repayment Date, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued
interest, if any, to the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to
Section 301, only upon presentation and surrender of such
coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated
Maturity is on or prior to the Repayment Date shall be payable
(but without interest thereon, unless the Company shall default
in the payment thereof) to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall
not be accompanied by all appurtenant coupons maturing after the
Repayment Date, such Security may be paid after deducting from
the amount payable therefor as provided in Section 1302 an
amount equal to the face amount of all such missing coupons, or
the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder
shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such
principal amount (together with interest, if any, thereon
accrued to such Repayment Date) shall, until paid, bear interest
from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set
forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon
surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or Covenant Defeasance. If,
pursuant to Section 301, provision is made for either or both of
(a) defeasance of the Securities of or within a series under
Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such
Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option
by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have
Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set
forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the
Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series,
the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any
coupons appertaining thereto on the date the conditions set
forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 1405 and
the other Sections of this Indenture referred to in clauses (A)
and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities and
any coupons appertaining thereto when such payments are due, (B)
the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment
of Additional Amounts, if any, on such Securities as
contemplated by Section 1008, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section
1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 1004 to
1006, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such
Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter
be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections
1004 to 1006, inclusive, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect
of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such Section
or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or
in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4)
or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to
application of Section 1402 or Section 1403 to any Outstanding
Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree
to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated
Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are
then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on
such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion
of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the
Stated Maturity of such
principal or installment of principal or interest and
(ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any
coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
under Section 1402 or the covenant defeasance under Section
1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result
of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1402
or Section 1403 (as the case may be), registration is not
required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act
have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations (or other property as may
be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any
Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest and
Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by
law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in
Section 1404(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 301 or the terms of such Security to
receive payment in a currency or currency unit
other than that in which the deposit pursuant to Section 1404(a)
has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the currency or currency unit in
which the deposit pursuant to Section 1404(a) has been made, the
indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on
such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in
the case of any such election) the amount or other property
deposited in respect of such Security into the currency or
currency unit in which such Security becomes payable as a result
of such election or Conversion Event based on the applicable
market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date,
except, with respect to a Conversion Event, for such currency or
currency unit in effect (as nearly as feasible) at the time of
the Conversion Event.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary
notwithstanding, subject to Section 606, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section
1404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
* * * * *
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first
above written.
RESOURCE MORTGAGE CAPITAL, INC.
By:
Title:
Attest:
Title:
as Trustee
By:
Title:
Attest:
Title:
STATE OF MARYLAND )
) ss:
COUNTY OF MONTGOMERY)
On the day of , before me personally
came , to me known, who, being by me duly
sworn, did depose and say that he/she resides at
, , that he/she is of
RESOURCE MORTGAGE CAPITAL, INC., one of the parties described in
and which executed the foregoing instrument, and that he/she
signed his/her name thereto by authority of the board of
trustees.
[Notarial Seal]
Notary Public
COMMISSION EXPIRES
STATE OF ________ )
) ss:
COUNTY OF ________ )
On the day of , before me personally
came , to me known, who, being by me duly
sworn, did depose and say that he/she resides at
, that he/she is of ,
one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by
authority of the Board of Trustees.
[Notarial Seal]
Notary Public
COMMISSION EXPIRES
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and
except as set forth below, the above-captioned Securities held
by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"),
(ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions
and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise
Resource Mortgage Capital, Inc. or its agent that such financial
institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a
United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i)
or (ii)), this is to further certify that such financial
institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States
of America (including the States and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We undertake to advise you promptly by tested telex on
or prior to the date on which you intend to submit your
certification relating to the above-captioned Securities held by
you for our account in accordance with your Operating Procedures
if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
__________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we
understand an exchange for an interest in a Permanent Global
Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot
be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States.
If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
(Authorized Signator)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date
hereof, [U.S.$] _____________ principal amount of the
above-captioned Securities (i) is owned by person(s) that are
not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"),
(ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions
and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or
through its agent, that we may advise Resource Mortgage Capital,
Inc. or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States
of America (including the States and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary global Security
representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification
from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States.
If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By: