EXHIBIT 4.3
ULTRAMAR DIAMOND SHAMROCK CORPORATION
AND
The Bank of New York, Trustee
Indenture
Dated as of June 25, 1997
Subordinated Debt Securities
ULTRAMAR DIAMOND SHAMROCK CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of June 25, 1997
Trust Indenture Act Section Indenture Section
Section 310(a)(1) 608
(a)(2) 608
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 608
Section 311(a) 609
(b) 605
Section 312(a) 605, 703
(b) 701, 702
(c) 702
Section 313(a) 703(a)
(b)(1) Not Applicable
(b)(2) 703(b)
(c) 703(c)
(d) 703(c)
Section 314(a)(1) 704
(a)(2) 704
(a)(3) 704
(a)(4) 1005
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601(a)
(b) 602
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1), (c)(1)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
Section 316(a)(1)(A) 502, 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) Not Applicable
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 108
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
PARTIES
RECITALS
ARTICLE ONE
SECTION 101. Definitions
Act
Additional Amounts
Affiliate
Authenticating Agent
Authorized Newspaper
Bearer Security
Board of Directors
Board Resolution
Business Day
Commission
Company
Company Request" and "Company Order
Controlled Subsidiary
Corporate Trust Office
corporation
coupon
Defaulted Interest
Dollars" or "$
Event of Default
Holder
Indenture
interest
Interest Payment Date
Maturity
Officers' Certificate
Opinion of Counsel
Original Issue Discount Security
Outstanding
Paying Agent
Person
Place of Payment
Predecessor Security
Redemption Date
Redemption Price
Registered Security
Regular Record Date
Responsible Officer
Security" or "Securities
Security Register" and "Security Registrar
Senior Indebtedness
Special Record Date
Stated Maturity
Subsidiary
Trustee
Trust Indenture Act
United States
United States Alien
U.S. Depository" or "Depository
Vice President
Voting Stock
SECTION 102. Compliance Certificates and Opinions
SECTION 103. Form of Documents Delivered to Trustee
SECTION 104. Acts of Holders
SECTION 105. Notices etc. to Trustee and Company
SECTION 106. Notice to Holders of Securities; Waiver
SECTION 107. Language of Notices, etc.
SECTION 108. Conflict with Trust Indenture Act
SECTION 109. Effect of Headings and Table of Contents
SECTION 110. Successors and Assigns
SECTION 111. Separability Clause
SECTION 112. Benefits of Indenture
SECTION 113. Governing Law
SECTION 114. Legal Holidays
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
SECTION 202. Form of Trustee's Certificate of Authentication
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
SECTION 302. Denominations
SECTION 303. Execution, Authentication, Delivery and Dating
SECTION 304. Temporary Securities
SECTION 305. Registration, Transfer and Exchange
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
SECTION 307. Payment of Interest; Interest Rights Preserved
SECTION 308. Persons Deemed Owners
SECTION 309. Cancellation
SECTION 310. Computation of Interest
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
SECTION 402. Application of Trust Money
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
SECTION 502. Acceleration of Maturity; Rescission and Annulment
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee
SECTION 504. Trustee May File Proofs of Claim
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons
SECTION 506. Application of Money Collected
SECTION 507. Limitation on Suits
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest
SECTION 509. Restoration of Rights and Remedies
SECTION 510. Rights and Remedies Cumulative
SECTION 511. Delay or Omission Not Waiver
SECTION 512. Control by Holders of Securities
SECTION 513. Waiver of Past Defaults
SECTION 514. Undertaking for Costs
SECTION 515. Waiver of Stay, Extension or Usury Laws
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
SECTION 602. Notice of Defaults
SECTION 603. Certain Rights of Trustee
SECTION 604. Not Responsible for Recitals or Issuance of Securities
SECTION 605. May Hold Securities
SECTION 606. Money Held in Trust
SECTION 607. Compensation and Reimbursement
SECTION 608. Corporate Trustee Required; Eligibility
SECTION 609. Resignation and Removal; Appointment of Successor
SECTION 610. Acceptance of Appointment by Successor
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business
SECTION 612. Appointment of Authenticating Agent
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
SECTION 702. Preservation of Information; Communications to Holders
SECTION 703. Reports by Trustee
SECTION 704. Reports by Company
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
SECTION 802. Rights and Duties of Successor Corporation
SECTION 803. Officers' Certificate and Opinion of Counsel
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders
SECTION 902. Supplemental Indentures with Consent of Holders
SECTION 903. Execution of Supplemental Indentures
SECTION 904. Effect of Supplemental Indentures
SECTION 905. Conformity with Trust Indenture Act
SECTION 906. Reference in Securities to Supplemental Indentures
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest
SECTION 1002. Maintenance of Office or Agency
SECTION 1003. Money for Securities Payments to be Held in Trust
SECTION 1004. Additional Amounts
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults
SECTION 1006. Waiver of Certain Covenants
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101 Agreement to Subordinate
SECTION 1102 Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities
SECTION 1103 No Payment on Securities in Event of Default on Senior
Indebtedness
SECTION 1104 Payments on Securities Permitted
SECTION 1105 Authorization of Holders of Securities to Trustee to
Effect Subordination
SECTION 1106 Notices to Trustee
SECTION 1107 Trustee as Holder of Senior Indebtedness
SECTION 1108 Modification of Terms of Senior Indebtedness
ARTICLE TWELVE
SECTION 1202. Election to Redeem; Notice to Trustee
SECTION 1203. Selection by Trustee of Securities to be Redeemed
SECTION 1204. Notice of Redemption
SECTION 1205. Deposit of Redemption Price
SECTION 1206. Securities Payable on Redemption Date
SECTION 1207. Securities Redeemed in Part
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities
SECTION 1303. Redemption of Securities for Sinking Fund
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called
SECTION 1502. Call, Notice and Place of Meetings
SECTION 1503. Persons Entitled to Vote at Meetings
SECTION 1504. Quorum; Action
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings
SECTION 1506. Counting Votes and Recording Action of Meetings
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601 Securities in Foreign Currencies
INDENTURE, dated as of June 25, 1997, between ULTRAMAR DIAMOND
SHAMROCK CORPORATION, a Delaware corporation (hereinafter called the
"Company"), having its principal office at 9830 Colonnade Boulevard, San
Antonio, Texas 78230 and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (hereinafter called the "Trustee") having its
Corporate Trust Office at 101 Barclay Street, Floor 21 West, New York,
New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
subordinated debentures, notes or other evidences of subordinated
indebtedness (hereinafter called the "Securities"), unlimited as to
principal amount, to bear such rates of interest, to mature at such time
or times, to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the sum of one
dollar duly paid by the Company to the Trustee, the receipt of which is
hereby acknowledged, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders, as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities
or of series thereof, as follows
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the
date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"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 matters, including, without limitation, taxes imposed on certain
Holders, and which are owing to such Holders.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means either the Board of Directors of the
Company or the Executive Committee thereof.
"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" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law
to close, except as may otherwise be provided in the form of Securities
of any particular series pursuant to the provisions of this Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on
such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of
the Board, the President, a Vice President or by the Treasurer, and by
an Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"Controlled Subsidiary" means any corporation more than 80% of the
outstanding Voting Stock, except for qualifying shares, of which shall
at the time be owned directly or indirectly by the Company.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be
administered, which office is located at 101 Barclay Street, Floor 21
West, New York, New York 10286.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" or any similar reference shall mean the currency
of the United States, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Event of Default" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means in the case
of a Registered Security, the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer
Security, the bearer thereof and, when used with respect to any coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof, and shall
include each Officers' Certificate delivered to the Trustee pursuant to
Section 303.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a
Security which provides for the payment of Additional Amounts pursuant
to Section 1004, includes such Additional Amounts.
"Interest Payment Date" means the Stated Maturity of an instalment
of interest on the applicable Securities.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption,
request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President, a Vice President or the Treasurer, and by
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
(except as otherwise expressly provided in this Indenture) be an
employee of or counsel for the Company, or other counsel acceptable to
the Trustee.
"Original Issue Discount Security" means a Security issued pursuant
to this Indenture which provides for declaration of an amount less than
the principal thereof to be due and payable upon acceleration 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 for whose payment or redemption 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 thereto appertaining, 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;
and
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or are present at a meeting of Holders of Securities for
quorum purposes, the principal amount of an Original Issue Discount
Security that may be counted in making such determination and that shall
be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that could be declared to be due and
payable pursuant to the terms of such Original Issue Discount Security
at the time the taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee as provided in Section
104(a), and, provided further, that Securities owned beneficially by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, other than Securities purchased in
connection with the distribution or trading thereof, shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or 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 on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as
specified as provided pursuant to Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by 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 lost, destroyed, mutilated 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 lost,
destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen coupon appertains.
"Redemption Date" when used with respect to any Security to be
redeemed 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 as determined
pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered
Security on any Interest Payment Date means the date, if any, specified
in such Security as the "Regular Record Date".
"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, the cashier, any assistant cashier, any trust officer or
assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means any payment in respect of indebtedness
of the Company for money borrowed, except for trade credit and any such
indebtedness that is by its terms subordinated to or pari passu with the
Securities.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
instalment of principal thereof or interest thereon means the date
specified in such Security or a coupon representing such 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 (i) any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the shares of Voting
Stock, (ii) any general partnership, joint venture, business trust or
similar entity, of which at the time of determination the Company and/or
one or more Subsidiaries owns or controls directly or indirectly more
than 50% or the outstanding partnership or similar interests and (iii)
any limited partnership of which the Company or any of its Subsidiaries
is a general partner. "Wholly-owned", when used with reference to a
Subsidiary, means a Subsidiary of which all of the outstanding capital
stock (except for qualifying shares) or partnership or similar
interests, as applicable, is owned by the Company or by one or more
wholly-owned Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Act or provision, as the
case may be, as amended or replaced from time to time or as supplemented
from time to time by rules or regulations adopted by the Commission
under or in furtherance of the purposes of such Act or provision, as the
case may be.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is,
for United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a nonresident alien fiduciary of a
foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to the
Securities of any series issuable or issued in whole or in part in the
form of one or more global Securities, the Person designated as U.S.
Depository by the Company pursuant to Section 301, which must be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and, if so provided pursuant to Section 301 with respect to the
Securities of any series, any successor to such Person. If at any time
there is more than one such Person, "U.S. Depository" shall mean, with
respect to any series of Securities, the qualifying entity which has
been appointed with respect to the Securities of that series.
"Vice President" when used with respect to the Company shall mean
any Vice President of the Company whether or not designated by a number
or a word or words added before or after the title "Vice President".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
provided that, for the purposes hereof, stock, which carries only the
right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
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 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 with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing. If,
but only 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 and so voting at
any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set
forth or determined in an Officers' Certificate, or established in
one or more indentures supplemental hereto, pursuant to Section
301, a Holder, including a U.S. Depository that is a Holder of a
global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its
proxy or proxies to the beneficial owners of interests in any such
global Security through such U.S. Depository's standing
instructions and customary practices.
The Company shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in
any permanent global Security held by a U.S. Depository entitled
under the procedures of such U.S. Depository to make, give or take,
by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such
record date or their duly appointed proxy or proxies, and only such
Persons shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action shall be valid or effective
if made, given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may
in any instance require further proof with respect to any of the
matters referred to in this Section.
(c) The ownership of Registered Securities and the principal
amount and serial numbers of Registered Securities held by any
Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary reasonably acceptable to the Company,
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
exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by
some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is
no longer Outstanding. The principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument
or writing and the date of holding the same may also be proved in
any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date
for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. 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 Registered Securities 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 of
Registered Securities on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other 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 its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Treasurer
at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper
in The City of New York and, if the Securities of such series are
then listed on any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date and not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice
to Holders of Bearer Securities given as provided herein. In case by
reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to Holders
of Bearer Securities as shall be given with the approval of the Trustee
shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice mailed to Holders
of Registered Securities as provided above.
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 equivalent of
such notice. Waivers of notice by Holders of Securities 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. Language of Notices, etc.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company so elects, any
published notice may be in an official language of the country of
publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required
provisions shall control.
SECTION 109. 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 110. 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 111. Separability Clause.
In case any provision in this Indenture or in the Securities or
coupons shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
SECTION 112. 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 and their successors hereunder and
the Holders of Securities or coupons, any benefit or any legal or
equitable right, remedy or
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by
and controlled in accordance with the laws of the State of New York
without regard to the conflicts of laws provisions thereof.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture
or the Securities or coupons other than a provision in the Securities
which specifically states that such provision shall apply in lieu of
this Section) 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, except that
if such next succeeding Business Day is in the next succeeding calendar
year, then on the immediately preceding Business Day, at such Place of
Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as
the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series, related coupons, if any, and
temporary global Securities, if any, shall be in the form established by
or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their
execution of such Securities.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall
be issuable in registered form without coupons. If so provided as
contemplated by Section 301, the Securities of a series also shall be
issuable in bearer form, with or without 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, as conclusively evidenced by their execution of such
Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: By:
Authorized Signatory
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 or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may
be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906 or 1107);
(3) 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; and whether any Securities of the series are to be
issuable initially in global form and, if so, (i) whether
beneficial owners of interests in any such 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 specified in Section 305 and (ii) the name of the depository
or the U.S. Depository, as the case may be, with respect to any
global Security;
(4) 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;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form (representing all of the
Outstanding Bearer Securities of the series) payable in respect of
an Interest Payment Date prior to the exchange of such temporary
Bearer Security for definitive Securities of the series shall be
paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(6) the date or dates on which the principal of such
Securities is payable;
(7) the rate or rates at which such Securities shall bear
interest, if any, or any method by which such rate or rates shall
be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on
Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such securities
shall be payable in respect of specified taxes, assessments or
other governmental charges withheld or deducted and, if so, whether
the Company has the option to redeem the affected Securities rather
than pay such Additional Amounts, and the basis upon which interest
shall be calculated if other than that of a 360 day year of twelve
30-day months;
(8) the place or places, if any, in addition to or other than
the Borough of Manhattan, The City of New York, where the principal
of (and premium, if any) and interest on or Additional Amounts, if
any, payable in respect of such Securities shall be payable;
(9) the period or periods within which, the price or prices
at which and the terms and conditions upon which such Securities
may be redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or
purchase such Securities pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms
and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and
any provisions for the remarketing of such Securities;
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which Bearer Securities of the series, if any, shall be issuable if
other than the denomination of $5,000;
(12) if other than the principal amount thereof, the portion
of the principal amount of such Securities which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
(13) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies, in which payment of the principal of (and premium, if
any) and interest, if any, on, and Additional Amounts in respect of
such Securities shall be payable;
(14) if the principal of (and premium, if any) or interest,
if any, on, and Additional Amounts in respect of, such Securities
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency, including composite currencies,
other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions
upon which, such election may be made;
(15) if the amount of payments of principal of (and premium,
if any) or interest, if any, on, and Additional Amounts in respect
of, such Securities may be determined with reference to an index,
formula or other method or based on a coin or currency other than
that in which the Securities are stated to be payable, the manner
in which such amounts shall be determined;
(16) the right, if any, of the Company to defer payments of
interest by extending the interest payment periods and specify the
duration of such extension, the Interest Payment Dates on which
such interest shall be payable and whether and under what
circumstances additional interest on amounts deferred shall be
payable;
(17) the limitation, if any, on the Company's right to pay
dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock or comparable equity interest;
(18) 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 terms of such certificates, documents
or conditions; and
(19) any other terms of such Securities (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially
identical except as to denomination and the rate or rates of interest,
if any, and Stated Maturity, the date from which interest, if any, shall
accrue and except as may otherwise be provided in or pursuant to such
Board Resolution 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 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 a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the
terms of such series.
SECTION 302. Denominations.
Unless other denominations and amounts may from time to time be
fixed by or pursuant to a Board Resolution, the Registered Securities of
each series, if any, shall be issuable in registered form without
coupons in denominations of $1,000 and any integral multiple thereof and
the Bearer Securities of each series, if any, shall be issuable in the
denomination of $5,000, or in such other denominations and amounts as
may from time to time be fixed by or pursuant to a Board Resolution.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, President, Vice President serving as Chief
Financial Officer or its Treasurer and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile. Coupons shall bear the
facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company
to the Trustee for authentication, together with the Board Resolution
and Officers' Certificate or supplemental indenture with respect to such
Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order and subject to the provisions hereof
shall authenticate and make available for delivery such Securities. 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 Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) the form and terms of such Securities and coupons, if
any, have been established in conformity with the provisions of
this Indenture;
(b) that all conditions precedent to the authentication and
delivery of such Securities, together with the coupons, if any,
appertaining thereto, have been complied with and that such
Securities and coupons, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles,
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
coupons, if any, have been complied with; and
(d) as to such other matters as the Trustee may reasonably
request.
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 or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee being advised by counsel
determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security
in global form shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 615 executed by
or on behalf of the Trustee by the manual signature of one of its
authorized signers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured
have been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order
the Trustee shall authenticate and deliver, in the manner provided in
Section 303, temporary Securities of such series 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
evidenced by their execution of such Securities. In the case of Bearer
Securities of any series, such temporary Securities may be in global
form, representing all of the Outstanding Bearer Securities of such
series.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, 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, the temporary
Securities of such series shall be exchangeable for definitive
Securities of such series containing identical terms and provisions upon
surrender of the temporary Securities of such series at an office or
agency of the Company maintained for such purpose pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto) the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations of
the same series containing identical terms and provisions; provided,
however, that no definitive Bearer Security, except as provided pursuant
to Section 301, 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 therein. Unless
otherwise specified as contemplated by Section 301 with respect to a
temporary global Security, 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.
SECTION 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any,
the Company shall cause to be kept at an office or agency of the Company
maintained pursuant to Section 1002, a register (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide
for the registration of the Registered Securities of each series and of
transfers of the Registered Securities of each series. Such office or
agency shall be the "Security Registrar" for the Registered Securities,
if any, of each series of Securities. In the event that the Trustee
shall not be the Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company maintained
for that series pursuant to Section 1002, 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, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Registered Securities which the holder making the exchange is
entitled to receive.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series containing
identical terms and provisions, of any authorized denominations and
aggregate principal amount, 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, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee 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 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 date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be
(or, if such coupon is so surrendered with such Bearer Security, such
coupon shall be returned to the person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
If expressly provided with respect to the Securities of any series,
at the option of the Holder, Registered Securities of such series may be
exchanged for Bearer Securities upon such terms and conditions as may be
provided with respect to such series.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security shall be exchangeable
only if (i) the Securities Depository is at any time unwilling or unable
to continue as Securities Depository and a successor depository is not
appointed by the Company within 60 days, (ii) the Company executes and
delivers to the Trustee a Company Order to the effect that such global
Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to
exchange such interests for Securities of such series and of like tenor
and principal amount of any authorized form and denomination, as
specified as contemplated by Section 301, then without unnecessary delay
but in any event not later than the earliest date on which such
interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in aggregate principal amount equal
to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be
so exchanged, such global Securities shall be surrendered from time to
time by the U.S. Depository or such other depository as shall be
specified in the Company Order with respect thereto, and in accordance
with instructions given to the Trustee and the U.S. Depository or such
depository, as the case may be (which instructions shall be in writing
but need not comply with Section 102 or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same
series without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like
tenor as the portion of such global Security to be exchanged which
(unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in
the form in which the Securities are issuable, as specified as
contemplated by Section 301) shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no
such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise specified as contemplated by Section
301) no Bearer Security delivered in exchange for a portion of a global
Security shall be mailed or otherwise delivered to any location in the
United States. Promptly following any such exchange in part, such
global Security shall be returned by the Trustee to such depository or
the U.S. Depository, as the case may be, or such other depository or
U.S. Depository referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in
exchange for any portion of a global Security after the close of
business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of interest or Defaulted Interest, as
the case may be, interest 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 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 for such series of Security presented)
be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and such 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, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to
Section 304, 906 or 1206 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected
for redemption under Section 1103 and ending at the close of business on
the day of such mailing, 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 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, provided that such
Registered Security shall be immediately surrendered for redemption with
written instruction for payment consistent with the provisions of this
Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a new Security of the same series
containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to
the coupons, if any, appertaining to the surrendered Securities.
If there 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 make available for delivery, 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 containing identical terms and of like principal amount
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost
or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security
or coupon; provided, however, that payment of principal of (and premium,
if any) and any interest on Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency located
outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be
payable only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and
its counsel) 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
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall, if so provided in such Security, be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
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 of 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.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest 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
affected (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which 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 such
Registered Securities 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 the name and at the expense of the Company,
cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be
a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following Clause (2). 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 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 payment shall be deemed practicable
by the Trustee.
At the option of the Company, interest on Registered Securities of
any series that bear interest may be paid by mailing a check to the
address of the person entitled thereto as such address shall appear in
the Security Register.
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 Registered Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject
to Sections 305 and 307) interest on and Additional Amounts with respect
to, such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or 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.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
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. 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 all Securities so delivered shall
be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities and coupons held by the Trustee
shall be returned by the Trustee to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360 day year of twelve 30-day months
or, for any period shorter than a full three months, on the basis of the
actual number of days elapsed in such period.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order this Indenture
shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly
provided for and any right to receive Additional Amounts, as provided in
Section 1004), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons 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 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 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 such Securities and, in the case of (i) or (ii)
below, any such 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 deposited or caused
to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities and 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 have been complied with.
In the event there are Securities of two or more series hereunder,
the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so
with respect to Securities of all series as to which it is Trustee and
if the other conditions thereto are met. In the event there are two or
more Trustees hereunder, then the effectiveness of any such instrument
shall be conditioned upon receipt of such instrument from all Trustees
hereunder.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and, if
money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and any
interest and Additional Amounts for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law 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 when such interest or Additional Amounts becomes due and
payable, and continuance of such default for a period of 30 days;
provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of the
Securities of such series shall not constitute a default in the
payment of interest for this purpose; or
(2) default in the payment of the principal of (and premium,
if any, on) any Security of that series when it becomes due and
payable at Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of
such default or breach for a period of 60 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) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its
affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(6) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent
to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its
property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become
due or shall take any corporate action in furtherance of any of the
foregoing; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default 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
of all the Securities of that series, or such lesser amount as may be
provided for in 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 such lesser amount 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
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Securities of
that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon 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
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 non-payment of the principal of Securities
of that series which has 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 instalment of
interest on or any Additional Amounts payable in respect of any
Security when such interest or Additional Amounts shall have become
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 at its Maturity.
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and premium,
if any) and interest and Additional Amounts, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon overdue
installments of interest or any Additional Amounts, 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 and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
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 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 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 that
series, of principal (and premium, if any) and interest and any
Additional Amounts 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 or 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 receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities and coupons to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders of Securities and coupons, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel and any other amounts due the Trustee under Section 607.
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 or 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 (and premium, if any), interest or 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 its
agents and counsel under Section 607;
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;
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) 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
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding 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 such Holders or Holders of any other series, or to
obtain or to seek to obtain priority or preference over any other
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 and Interest.
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 Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee 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 of 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 of Securities or coupons 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 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) such direction is not unduly prejudicial to the rights of
other Holders of Securities of such series.
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 (and premium, if any)
or interest on or Additional Amounts payable in respect of any
Security of such series, 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 impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit, other than
the Trustee, of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit,
including the Trustee, 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 Company,
the Trustee or by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the enforcement of the payment of the principal
of (and premium, if any) or interest on or any Additional Amounts in
respect of any Security or the payment of any coupon on or after the
respective Stated Maturities expressed in such Security (or, in the case
of redemption, on or after the Redemption Date) or interest on any
overdue principal of any Security.
SECTION 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. 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 by
mail to all Holders of Securities of such series entitled to receive
reports pursuant to Section 703(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 (and 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 instalment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in the
interests of the Holders of Securities and coupons of such series; and
provided, further, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of
such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, or other
paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security 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 shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture 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 examine the books, records
and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the Company, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons. The Trustee or any
Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar 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 Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. 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 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as the parties shall agree to in writing from time to time for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursements or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their 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
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities
of any series 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 Securities.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
corporation (or other person permitted to so act by the Commission
permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section or Section 310(a)(5) of the Trust Indenture
Act, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series giving written notice thereof to
the Company. If the instrument of acceptance by a successor
Trustee required by Section 610 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If the instrument of
acceptance by a successor Trustee required by Section 610 shall not
have been delivered to the Trustee within 30 days after the giving
of such notice of removal, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
(d) If at any time:
(1) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series 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
608 and shall fail to resign after written request therefor by
the Company or by any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act,
any Holder of a Security who has been a bona fide Holder of a Security
of any series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities of such
series 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 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) and shall comply with the applicable
requirements of Section 610. 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 in accordance with the applicable requirements of
Section 610, 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 required by Section 610, 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 the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of
Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice
of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. 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 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the part
of any other Trustee hereunder, 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, such retiring Trustee shall with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates have no further responsibility for the exercise of
rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture other than
as hereinafter expressly set forth, 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, to the extent contemplated by such supplemental indenture,
the 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 611. 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 shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 612. Appointment of Authenticating Agent.
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 original issue or exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, 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. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which 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 any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall (i) mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Registered
Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued
as Bearer Securities, publish notice of such appointment at least once
in an Authorized Newspaper in the place where such successor
Authenticating Agent has its principal office if such office is located
outside the United States. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: By:
As Authenticating Agent
By:
Authorized Signatory
If all of the Securities of any series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not comply with Section 102) by the Company,
shall appoint in accordance with this Section 612 an Authenticating
Agent having an office in a Place of Payment designated by the Company
with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. 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 fifteen 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.
SECTION 702. Preservation of Information; Communications to
Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company,
the Trustee, any Paying Agent or 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
Section 312 of the Trust Indenture Act, regardless of the source from
which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under Section 312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section
313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section
313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and
313(d) of the Trust Indenture Act. The Company will notify the
Trustee when any series of Securities are listed on any securities
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required
to file information, documents or reports pursuant to either of
said sections, then it shall file with the Commission, in
accordance with rules and regulations prescribed from time to time
by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect of
a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and
regulations and shall file a copy thereof with the Trustee within
30 days after such supplementary and periodic information,
documents and reports would have been required to be filed with the
Commission;
(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 within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 703(c)
with respect to reports pursuant to Section 703(a), such summaries
of any information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, 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, (i) 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 of America or a State thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of
(and premium, if any), any interest on, and any Additional Amounts
payable pursuant to Section 1004 with respect to, all 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 satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation,
and (ii) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger or consolidation, or such sale,
lease or conveyance, be in default in the performance of any such
covenant or condition.
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 and coupons. 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 and coupons
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 and coupons
which previously shall have been signed and delivered by the officers of
the Company to the Trustee for authentication, and any Securities or
coupons which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the
Securities and coupons so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities and
coupons theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities and coupons 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 and coupons thereafter to be issued as may
be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, lease or conveyance,
and any such assumption, complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to the
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 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 (or premium, if any) on Registered Securities
or of principal (or premium, if any) or any interest on Bearer
Securities, to permit Registered Securities to be exchanged for
Bearer Securities or to permit the issuance of Securities in
uncertificated form, provided 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
(4) to establish the form of terms of Securities of any
series as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 610 (b); or
(6) 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
which shall not adversely affect the interest of the Holders of
Securities of any series or any related coupons in any material
respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any Additional
Amounts payable in respect thereof, or any premium payable upon the
redemption thereof, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as contemplated
by Section 801(i) 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 change any Place of
Payment where, or the coin or currency 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,
on or after the Redemption Date), 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 (of 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 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, or Section
513, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee 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 coupons 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, and Interest.
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), 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. 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 1004 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.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series (but
not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be presented
or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain, subject to any
laws or regulations applicable thereto, an office or agency in a Place
of Payment for such series which is located outside the United States
where Securities of such series and the related coupons may be presented
and surrendered for payment (including payment of any Additional Amounts
payable on Securities of such series pursuant to Section 1004);
provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland or
the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent in London, Luxembourg or any other
required city located outside the United States, as the case may be, so
long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of 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 1004) at
the place specified for the purpose pursuant to Section 301, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no
payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest in U.S.
dollars (including Additional Amounts payable in respect thereof) on any
Bearer Security may be made at the Corporate Trust Office of the Trustee
in the Borough of Manhattan, The City of New York if (but only if)
payment of the full amount of such principal, premium, interest or
Additional Amounts at all offices outside the United States maintained
for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
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 set forth in a Board Resolution or indenture
supplemental hereto with respect to a series of Securities, the Company
hereby designates as the Place of Payment for each series of Securities
the Borough of Manhattan, The City of New York, and initially appoints
the Trustee at its Corporate Trust Office as the Company's office or
agency for each of such purposes in such City.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any), or interest on, any of the
Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any), or interest on, any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest on
the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or of any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any
money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in an Authorized Newspaper in each Place of
Payment or to be mailed to Holders of Registered Securities, or both,
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 or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of any
series or any coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or
in respect of, any Security of any series or 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 for in this Section to the extent that,
in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express
mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with
respect to that series of Securities (or if the Securities of that
series will not bear interest prior to Maturity, the first day on which
a payment of principal (and premium, if any) is made), and at least 10
days prior to each date of payment of principal (and premium, if any) or
interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether
such payment of principal (and premium, if any) or interest on the
Securities of that series shall be made to Holders of Securities of that
series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that Series. If any
such withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be withheld on
such payments to such Holders of Securities or coupons and the Company
will pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad
faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 1005. Statement as to Compliance
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement, which need not comply with
Section 102, signed by the Chairman of the Board, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the
Controller or an Assistant Controller of the Company, stating, as to
each signer thereof, that
(a) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, (i) the
Company has fulfilled all of its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default
known to him and the nature and status thereof, and (ii) no event
has occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if such an
event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
SECTION 1006. 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 1005,
inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition
except to the extent 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
SUBORDINATION OF SECURITIES
SECTION 1101. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities, by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any), interest on and any Additional Amounts payable in
respect of each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in
right of payment to the prior payment in full of all Senior
Indebtedness.
SECTION 1102. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of the Company or
otherwise (subject to the power of a court of competent jurisdiction to
make other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the Holders thereof by a lawful plan or
reorganization under applicable bankruptcy law),
(1) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof, premium, if
any, interest or additional amounts required in respect of certain
taxes, and any interest thereon, due thereon before the Holders of
the Securities are entitled to receive any payment upon the
principal, premium, interest or Additional Amounts of or on the
Securities or interest on overdue amounts thereof; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Eleven shall be
paid by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of,
premium, if any, interest or additional amounts required in respect
of certain taxes, and any interest thereon, on the Senior
Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be
received by the Trustee or the Holders of the Securities before all
Senior Indebtedness is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to Senior Indebtedness
until the principal, premium, interest or Additional Amounts, and any
interest thereon, of or on the Securities shall be paid in full and no
such payments or distributions to the Holders of the Securities of cash,
property or securities otherwise distributable to the Senior
Indebtedness shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the
Securities. It is understood that the provisions of this Article Eleven
are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the
holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article Eleven or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and
absolute, to pay to the Holders of the Securities the principal,
premium, interest or Additional Amounts, and any interest thereon, of or
on the Securities as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the
Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or in the
Securities prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article Eleven of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy. Upon any payment or distribution of assets of the Company
referred to in this Article Eleven, the Trustee shall be entitled to
conclusively rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee for the purpose
of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon, and all other facts pertinent
thereto or to this Article Eleven.
The Trustee, however, shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness. The Trustee shall not be liable
to any such holder if it shall pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this
Article Eleven. The rights and claims of the Trustee under Section 607
shall not be subject to the provisions of this Article Eleven.
If the Trustee or any Holder of Securities does not file a proper
claim or proof of debt in the form required in any proceeding referred
to above prior to 30 days before the expiration of the time to file such
claim in such proceeding, then the holder of any Senior Indebtedness is
hereby authorized, and has the right, to file an appropriate claim or
claims for or on behalf of such Holder of Securities.
SECTION 1103. No Payment on Securities in Event of Default on
Senior Indebtedness.
No payment by the Company on account of principal, premium,
interest or Additional Amounts, and any interest thereon, of or on the
Securities shall be made unless full payment of amounts then due for
principal, premium, if any, sinking funds, and interest or Additional
Amounts on Senior Indebtedness has been made or duly provided for in
money or money's worth.
SECTION 1104. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities
shall (a) affect the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 1102 and
1103, payments of principal, premium, interest or Additional Amounts,
and any interest thereon, of or on the Securities or (b) prevent the
application by the Trustee of any moneys deposited with it hereunder to
the payment of or on account of the principal, premium, interest or
Additional Amounts, and any interest thereon, of or on the Securities
unless the Trustee shall have received at its Corporate Trust Office
written notice of any event prohibiting the making of such payment more
than two Business Days prior to the date fixed for such payment or prior
to the execution of an instrument to satisfy and discharge this
Indenture based upon the deposit of funds under Section 401(1)(B).
SECTION 1105. Authorization of Holders of Securities to Trustee to
Effect Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in
this Article Eleven and appoints the Trustee his attorney-in-fact for
any and all such purposes.
SECTION 1106. Notices to Trustee.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee located at the Corporate Trust Office of the
Trustee of any fact known to the Company which would prevent the making
of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture, neither the Trustee nor any Paying Agent (other than
the Company) shall be charged with knowledge of the existence of any
Senior Indebtedness or of any event which would prohibit the making of
any payment of moneys to or by the Trustee or such Paying Agent, unless
and until the Trustee or such Paying Agent shall have received (in the
case of the Trustee, at its Corporate Trust Office) written notice
thereof from the Company or from the holder of any Senior Indebtedness
or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of
the authority of such trustee; provided, however, that if at least two
Business Days prior to the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without
limitation, the payment of the principal, premium, interest or
Additional Amounts, of or on any Security, or any interest thereon) or
the date on which the Trustee shall execute an instrument acknowledging
satisfaction and discharge of this Indenture, the Trustee shall not have
received with respect to such moneys or the moneys deposited with it as
a condition to such satisfaction and discharge the notice provided for
in this Section 1106, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary,
which may be received by it on or after such two Business Days prior to
such date. The Trustee shall be entitled to conclusively rely on the
delivery to it of a written notice by a person representing himself to
be a holder of Senior Indebtedness (or a trustee on behalf of such
holder) to establish that such a notice has been given by a holder of
Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to
this Article Eleven, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article Eleven and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.
SECTION 1107. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article Eleven in respect of any Senior Indebtedness at any time held by
it to the same extent as any other holder of Senior Indebtedness and
nothing in Section 613 or elsewhere in this Indenture shall be construed
to deprive the Trustee of any of its rights as such holder.
SECTION 1108. Modification of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of
any of their rights under any instrument creating or evidencing Senior
Indebtedness, including without limitation the waiver of default
thereunder, may be made or done all without notice to or assent from
Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in
respect of, any liability or obligation under or in respect of, or of
any of the terms, covenants or conditions of any indenture or other
instrument under which any Senior Indebtedness is outstanding or of such
Senior Indebtedness, whether or not such release is in accordance with
the provisions of any applicable document, shall in any way alter or
affect any of the provisions of this Article Eleven or of the Securities
relating to the subordination thereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Applicability of Article.
Redemption of Securities of any series at the option of the Company
as permitted or required by the terms of such Securities shall be made
in accordance with the terms of such Securities and this Article.
SECTION 1202. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Company Order. In case of any redemption at the election
of the Company of less than all of the Securities of any series with the
same issue date, interest rate and Stated Maturity, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
SECTION 1203. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series; provided, however, that
no such partial redemption shall reduce the portion of the principal
amount of a Registered Security of such series not redeemed to less than
the minimum denomination for a Security of that series established
pursuant to Section 302.
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 Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been
or is to be redeemed.
SECTION 1204. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the Securities
to be redeemed, to the Holders of Securities to be redeemed. Failure to
give notice by mailing in the manner herein provided to the Holder of
any Registered Securities 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
Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(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 Securities to
be redeemed,
(4) in case any Registered 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 of such Security will receive, without charge, a new
Registered Security or Registered Securities of authorized
denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed, and,
if applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1205. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date)
accrued interest on and any Additional Amounts with respect thereto, all
the Securities or portions thereof which are to be redeemed on that
date.
SECTION 1206. 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, and from and after such date
(unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void.
Upon surrender of 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 (and any
Additional Amounts) 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 upon
presentation and surrender of coupons for such interest (at an office or
agency located outside the United States except as otherwise provided in
Section 1002), and provided, further, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons, or
the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided,
however, that interest (and any Additional Amounts) represented by
coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside of the United States
except as otherwise provided in Section 1002.
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
prescribed therefor in the Security.
SECTION 1207. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall
be surrendered at any office or agency of the Company maintained for
that purpose pursuant to Section 1002 (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 Registered Security or Securities of the same series,
containing identical terms and provisions, 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. If a Security in global form is so
surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository for
such Security in global form as shall be specified in the Company Order
with respect thereto to the Trustee, without service charge, a new
Security in global form in a denomination equal to and in exchange for
the unredeemed portion of the principal of the Security in global form
so surrendered.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. 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
permitted or required by any form of Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein
referred to as an "optional sinking fund payment". If provided for by
the terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1302.
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 1302. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series to be made
pursuant to the terms of such Securities as provided for by the terms of
such series (1) deliver Outstanding Securities of such series (other
than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), 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 series of
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Securities of any series in lieu of cash
payments pursuant to this Section 1302, the principal amount of
Securities of such series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon
delivery by the Company to the Trustee of Securities of that series
purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
SECTION 1303. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
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 and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that series
pursuant to Section 1302, 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 credited and not
theretofore delivered. 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 1203 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 1204. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1206 and 1207.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such option
of the Holder to require repayment of Securities before their Stated
Maturity, for purposes of Section 309, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities
be cancelled. Notwithstanding anything to the contrary contained in
this Article Thirteen, in connection with any repayment of Securities,
the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Holders of such Securities on
or before the close of business on the repayment date an amount not less
than the repayment price payable by the Company on repayment of such
Securities, and the obligation of the Company to pay the repayment price
of such Securities shall be satisfied and discharged to the extent such
payment is so paid by such purchasers.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any
time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501,
to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have the first
publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified,
as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such
meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that
if any action is to be taken at such meeting with respect to a consent
or waiver which this Indenture expressly provides may be given by the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities of a series that is less or greater than a
majority in principal amount of the Outstanding Securities of such
series, then, with respect to such action (and only such action) the
Persons entitled to vote such lesser or greater percentage in principal
amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any
other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which
shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
the proviso to Section 902, any resolution with respect to any consent
or waiver which this Indenture expressly provides may be given by the
Holders of not less than 66-2/3% in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned
meeting duly convened and at which a quorum is present as aforesaid only
by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that,
except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice,
consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by
the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series
in regard to proof of the holding of Securities of such series and
of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination or
proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided
in Section 1502(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of
all votes cast at the meeting. A record, at least in triplicate, of the
proceedings of each meeting of Holders of Securities of any series shall
be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section
1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein
stated.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of any
particular series, any amount in respect of any Security denominated in
a currency other than United States dollars shall be treated for any
such action or distribution as that amount of United States dollars that
could be obtained for such amount on such reasonable basis of exchange
and as of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or distribution
(or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights
or distribution) as the Company may specify in a written notice to the
Trustee or, in the absence of such written notice, as the Trustee may
determine.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture,
to be duly executed as of the day and year first above written:
ULTRAMAR DIAMOND SHAMROCK
CORPORATION
By: /s/ STEVE BLANK
Name: Steve Blank
Title: Vice President and
Treasurer
Attest:
/s/ PATRICK J. GUARINO
Patrick J. Gurarino, Secretary THE BANK OF NEW YORK,
as Trustee
By: /s/ WALTER GITLIN
Name: Walter Gitlin
Title: Vice President