Exhibit 4.18
================================================================================
CIT GROUP INC.
AND
BANK ONE TRUST COMPANY, N.A.,
as Trustee
and
BANK ONE NA, LONDON BRANCH
as London Paying Agent and London
Calculation Agent
----------
Indenture
Dated as of August 26, 2002
----------
DEBT SECURITIES
================================================================================
TRUST INDENTURE ACT CROSS REFERENCE SHEET*
Sections of Trust Sections of
Indenture Act Indenture
310(a)(1) 11.05
310(a)(2) 11.05
310(a)(3) Not applicable
310(a)(4) Not applicable
310(a)(5) 11.05
310(b) 11.06
310(c) Not applicable
311 11.09
312 10.03
313 10.01
314(a) 10.02, 6.05
314(b) Not applicable
314(c) 15.04
314(d) Not applicable
314(e) 15.04
315(a) 11.02(1)
315(b) 11.03
315(c) 11.02
315(d) 11.02
315(e) 7.10
316(a) 7.08 and 8.03
316(b) 7.09
316(c) 8.04
317(a) 7.03 and 7.04
317(b) 6.03
318(a) 15.06
- -------------
*The Trust Indenture Act Cross Reference Sheet is not a part of this Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE ONE DEFINITIONS......................................................1
Section 1.01.................................................................1
Section 1.02.................................................................1
Board of Directors..................................................1
Board Resolution....................................................2
Business day........................................................2
Component Currency..................................................2
Consolidated Subsidiaries...........................................2
Control.............................................................2
Conversion Event....................................................2
Corporate trust office..............................................2
Corporation.........................................................3
Currency Determination Agent........................................3
Debt Security.......................................................3
Debt Securityholder; holder of Debt Securities; holder..............3
Depositary..........................................................3
Dollars.............................................................3
Election Date.......................................................3
Event of default....................................................4
Foreign Currency....................................................4
Global Security.....................................................4
Government Obligations..............................................4
Indenture...........................................................4
Interest............................................................5
Judgment Date.......................................................5
LIBOR...............................................................5
LIBOR Currency......................................................5
LIBOR Security......................................................5
London Business Day.................................................5
London Paying Agent.................................................5
Majority............................................................5
Market Exchange Rate................................................5
Maturity............................................................6
Officer.............................................................6
Officers' Certificate...............................................6
Officer's Order.....................................................6
Opinion of Counsel..................................................6
Original Issue Discount Securities..................................6
Outstanding.........................................................6
Paying Agent........................................................7
Person..............................................................7
Place of Payment....................................................7
Principal Financial Center..........................................7
i
Page
----
Record Date.........................................................8
Responsible Officer.................................................8
Stock Exchange......................................................8
Subsidiary..........................................................8
Substitute Date.....................................................8
Trust Indenture Act of 1939.........................................8
Trustee.............................................................9
Voting stock........................................................9
ARTICLE TWO ISSUE, EXECUTION, AUTHENTICATION,
REGISTRATION, AND EXCHANGE OF
DEBT SECURITIES.............................................9
Section 2.01........................................................9
Section 2.02.......................................................11
Section 2.03.......................................................12
Section 2.04.......................................................12
Section 2.05.......................................................13
Section 2.06.......................................................15
Section 2.07.......................................................16
Section 2.08.......................................................17
Section 2.09.......................................................17
Section 2.10.......................................................17
Section 2.11.......................................................19
Section 2.12.......................................................20
ARTICLE THREE ISSUE OF DEBT SECURITIES........................................21
Section 3.01.......................................................21
ARTICLE FOUR REDEMPTION OF DEBT SECURITIES....................................22
Section 4.01.......................................................22
Section 4.02.......................................................22
Section 4.03.......................................................23
Section 4.04.......................................................24
ARTICLE FIVE SINKING FUNDS....................................................24
Section 5.01.......................................................24
Section 5.02.......................................................24
Section 5.03.......................................................24
ARTICLE SIX PARTICULAR COVENANTS OF THE CORPORATION...........................25
Section 6.01.......................................................25
Section 6.02.......................................................25
Section 6.03.......................................................26
Section 6.04.......................................................30
Section 6.05.......................................................32
ii
Page
----
Section 6.06.......................................................32
ARTICLE SEVEN REMEDIES OF TRUSTEE AND DEBT SECURITYHOLDERS....................33
Section 7.01.......................................................33
Section 7.02.......................................................35
Section 7.03.......................................................36
Section 7.04.......................................................36
Section 7.05.......................................................37
Section 7.06.......................................................37
Section 7.07.......................................................38
Section 7.08.......................................................38
Section 7.09.......................................................38
Section 7.10.......................................................39
Section 7.11.......................................................39
Section 7.12.......................................................40
Section 7.13.......................................................40
ARTICLE EIGHT CONCERNING THE DEBT SECURITYHOLDERS.............................41
Section 8.01.......................................................41
Section 8.02.......................................................41
Section 8.03.......................................................41
Section 8.04.......................................................42
ARTICLE NINE DEBT SECURITYHOLDERS' MEETINGS...................................42
Section 9.01.......................................................42
Section 9.02.......................................................42
Section 9.03.......................................................43
Section 9.04.......................................................43
Section 9.05.......................................................43
Section 9.06.......................................................44
Section 9.07.......................................................44
ARTICLE TEN REPORTS BY THE CORPORATION AND THE TRUSTEE
AND DEBT SECURITYHOLDERS' LISTS..............................45
Section 10.01......................................................45
Section 10.02......................................................45
Section 10.03......................................................45
ARTICLE ELEVEN CONCERNING THE TRUSTEE.........................................47
Section 11.01......................................................47
Section 11.02......................................................48
Section 11.03......................................................49
Section 11.04......................................................50
Section 11.05......................................................50
iii
Page
----
Section 11.06......................................................51
Section 11.07......................................................51
Section 11.08......................................................52
Section 11.09......................................................52
Section 11.10......................................................52
Section 11.11......................................................53
ARTICLE TWELVE DEFEASANCE.....................................................53
Section 12.01......................................................53
Section 12.02......................................................53
Section 12.03......................................................54
Section 12.04......................................................54
Section 12.05......................................................54
Section 12.06......................................................55
ARTICLE THIRTEEN IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS, AND DIRECTORS......................55
Section 13.01......................................................55
ARTICLE FOURTEEN SUPPLEMENTAL INDENTURES......................................56
Section 14.01......................................................56
Section 14.02......................................................57
Section 14.03......................................................58
Section 14.04......................................................58
Section 14.05......................................................58
Section 14.06......................................................59
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS......................................59
Section 15.01......................................................59
Section 15.02......................................................60
Section 15.03......................................................60
Section 15.04......................................................60
Section 15.05......................................................61
Section 15.06......................................................61
Section 15.07......................................................61
Section 15.08......................................................62
Section 15.09......................................................62
iv
INDENTURE dated as of August__, 2002 among CIT Group Inc., a corporation
duly organized and existing under the laws of the State of Delaware (the
"Corporation"), Bank One Trust Company, N.A., a banking corporation/association
duly organized and existing under the laws of the United States (the "Trustee")
and Bank One NA, London Branch, as London Paying Agent and London Calculation
Agent.
RECITALS OF THE CORPORATION
The Corporation is authorized to borrow money for its corporate purposes
and to issue debentures, notes or other evidences of indebtedness therefor; and
for its corporate purposes, the Corporation has determined to make and issue its
debentures, notes or other evidences of indebtedness in one or more series (the
"Debt Securities"), as hereinafter provided, up to such principal amount or
amounts as may from time to time be authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein
contained and for other valuable consideration, the receipt whereof is hereby
acknowledged, and in order to declare the terms and conditions upon which the
Debt Securities are to be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED,
by and between the parties hereto, that all the Debt Securities are to be
executed, authenticated and delivered subject to the further covenants and
conditions hereinafter set forth; and the Corporation, for itself and its
successors, does hereby covenant and agree to and with the Trustee and its
successors in said trust, for the benefit of those who shall hold the Debt
Securities, or any of them, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Unless otherwise defined in this Indenture or the context
otherwise requires, all terms used herein shall have the meanings assigned to
them in the Trust Indenture Act of 1939.
Section 1.02. Unless the context otherwise requires, the terms defined in
this Section 1.02 shall for all purposes of this Indenture and of any indenture
supplemental hereto have the meanings hereinafter set forth, the following
definitions to be equally applicable to both the singular and the plural forms
of any of the terms herein defined:
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of the
Corporation.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Corporation 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:
The term "Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that, with respect to Debt Securities not
denominated in Dollars, the day is also not a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center of the country issuing the Foreign Currency or
currency unit or, if the Foreign Currency or currency unit is euro, the day is a
day on which the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) System is open; provided, further, that, with respect to LIBOR
Securities, the day is also a London Business Day.
Component Currency:
The term "Component Currency" has the meaning specified in Section
2.10(e).
Consolidated Subsidiaries:
The term "Consolidated Subsidiaries" shall mean all subsidiaries except,
at any given time, any subsidiary the accounts of which are excluded from the
consolidated financial statements included in the last preceding annual report
of the Corporation with the approval of the independent certified or public
accountants or auditors who examined and reported on said financial statements.
Control:
The term "control" shall mean the power to direct the management and
policies of a person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise; and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
Conversion Event:
The term "Conversion Event" means the unavailability of any Foreign
Currency or currency unit due to the imposition of exchange controls or other
circumstances beyond the Corporation's control.
Corporate trust office:
The term "corporate trust office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office is
-2-
presently located at [_____________________________________]; notices shall be
so addressed and directed to the attention of Global Corporate Trust Services.:
Corporation:
The term "Corporation" shall mean CIT Group Inc., a Delaware corporation,
unless and until any successor corporation shall have become such pursuant to
the provisions of Section 15.01 hereof, and thereafter "Corporation" shall mean
such successor.
Currency Determination Agent:
The term "Currency Determination Agent", with respect to Debt Securities
of any series, means, unless otherwise specified in the Debt Securities of any
series, a New York Clearing House bank designated pursuant to Section 2.10 or
Section 2.11.
Debt Security:
The term "Debt Security" shall mean one of the Debt Securities, or one of
any series of Debt Securities (including any Global Securities) issued
hereunder. A Debt Security (including any Global Security) shall be deemed to
have been issued hereunder when duly authenticated by the Trustee or an agent
designated by the Trustee and delivered pursuant to the provisions of this
Indenture.
Debt Securityholder; holder of Debt Securities; holder:
The term "Debt Securityholder" or "holder of Debt Securities" or "holder",
with respect to any Debt Security, shall mean the person in whose name such Debt
Security shall be registered in the register kept for that purpose hereunder.
Depositary:
The term "Depositary" means with respect to the Debt Securities of any
series issuable or issued in the form of a Global Security, the clearing agency
designated as Depositary by the Corporation pursuant to Section 2.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each clearing agency who is then a Depositary hereunder, and if at any time
there is more than one such clearing agency, "Depositary" as used with respect
to the Debt Securities of any such series shall mean the Depositary with respect
to the Debt Securities of that series.
Dollars:
The term "Dollars" and the sign "$" mean the currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
Election Date:
The term "Election Date" has the meaning specified in Section 2.10(e).
-3-
Event of default:
The term "event of default" shall have the meaning specified in Section
7.01.
Foreign Currency:
The term "Foreign Currency" means a currency issued and actively
maintained as a country's recognized unit of domestic exchange by the government
of any country other than the United States and such term shall include the
euro.
Global Security:
The term "Global Security" shall mean a Debt Security evidencing all or
part of a series of Debt Securities which is executed by the Corporation and
authenticated and delivered to the Depositary or pursuant to the Depositary's
instructions, all in accordance with this Indenture and pursuant to a written
order of the Corporation signed by two Officers, which shall be registered in
the name of the Depositary or its nominee and which shall represent the amount
of uncertificated Debt Securities as specified therein.
Government Obligations:
The term "Government Obligations" means securities which are (i) direct
obligations of the government which issued the currency in which the Debt
Securities of a particular series are payable (except as provided in Sections
2.10(b) and 2.10(d), in which case with respect to Debt Securities for which an
election has occurred pursuant to Section 2.10(b), or a Conversion Event has
occurred as provided in Section 2.10(d), such obligations shall be issued in the
currency or currency unit in which such Debt Securities are payable as a result
of such election or Conversion Event) or (ii) obligations of a Person controlled
or supervised by or acting as an agency or instrumentality of the government
which issued the currency in which the Debt Securities of such series are
payable (except as provided in Sections 2.10(b) and 2.10(d), in which case with
respect to Debt Securities for which an election has occurred pursuant to
Section 2.10(b), or a Conversion Event has occurred as provided in Section
2.10(d)), such obligations shall be issued in the currency or currency unit in
which such Debt Securities are payable as a result of such election or
Conversion Event), the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such currency and are not callable or redeemable at the
option of the issuer thereof.
Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument and
all indentures supplemental hereto, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument, any
such supplemental indenture and the terms of each Debt Security issued
thereunder, respectively.
-4-
Interest:
The term "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.
Judgment Date:
The term "Judgment Date" has the meaning specified in Section 7.13.
LIBOR:
The term "LIBOR" means, with respect to any series of Debt Securities, the
rate specified as LIBOR for such Debt Securities in accordance with Section
2.01.
LIBOR Currency:
The term "LIBOR Currency" means the currency specified pursuant to Section
2.01 as to which LIBOR will be calculated or, if no currency is specified
pursuant to Section 2.01, Dollars.
LIBOR Security:
The term "LIBOR Security" means any Debt Security which bears interest at
a floating rate calculated with reference to LIBOR.
London Business Day:
The term "London Business Day" means, with respect to any LIBOR Security,
a day on which commercial banks are open for business, including dealings in the
LIBOR Currency, in London.
London Paying Agent:
The term "London Paying Agent" means Bank One NA, London Branch or any
other Person authorized by the Corporation to serve as London Paying Agent and
to pay the principal of (and premium, if any) or interest, if any, on any Debt
Securities of any series denominated in euros on behalf of the Corporation.
Majority:
The term "majority", with respect to the Debt Securities or any series of
Debt Securities, shall signify "majority in principal amount" whether or not so
expressed.
Market Exchange Rate:
The term "Market Exchange Rate" with respect to any Foreign
Currency or currency unit on any date means, unless otherwise specified in
accordance with Section 2.01, the noon buying rate in The City of New York for
cable transfers in such Foreign Currency or
-5-
currency unit as certified for customs purposes by the Federal Reserve Bank of
New York for such Foreign Currency or currency unit.
Maturity:
The term "maturity", with respect to any Debt Security, shall mean the
date on which the principal of such Debt Security shall become due and payable
as therein or herein provided, whether at stated maturity or by declaration of
acceleration of the maturity thereof, call for redemption, or otherwise.
Officer:
The term "officer" or "Officers" of the Corporation shall mean the
Chairman, Vice Chairman, President, or a Vice President, and if a second officer
is required shall mean, in addition to the above, the Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman, Vice Chairman, President, or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary, or an Assistant Secretary of the
Corporation, and delivered to the Trustee.
Officer's Order:
The term "Officer's Order" shall mean a written request signed by the
Chairman, Vice Chairman, President, or a Vice President of the Corporation, and
delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean a written opinion of counsel,
which may be given by an employee of or of counsel to the Corporation, and which
in form and substance shall be acceptable to the Trustee.
Original Issue Discount Securities:
The term "Original Issue Discount Securities" shall mean any Debt
Securities which are initially sold at a discount from the principal amount
thereof and which provide upon an event of default for declaration of an amount
less than the principal amount thereof to be due and payable upon acceleration
of the Maturity thereof.
Outstanding:
The term "outstanding" or "Outstanding", subject to Section 8.03 hereof,
when used as of any particular time with reference to the Debt Securities, shall
mean all the Debt Securities which shall theretofore have been issued under this
Indenture, except: (a) Debt Securities which shall be deemed to have been
retired as hereinafter provided; (b) Debt Securities, including any portion of a
Global Security, which shall have been surrendered to the
-6-
Trustee for cancellation; (c) Debt Securities in substitution for which other
Debt Securities shall have been issued pursuant to Section 2.07; and (d) Debt
Securities or portions thereof for the payment or redemption of which moneys in
the necessary amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Corporation) or shall have been set aside and
segregated in trust by the Corporation (if the Corporation shall act as its own
paying agent), provided that if such Debt Securities are to be redeemed prior to
the stated maturity thereof, notice of such redemption shall have been mailed as
provided in Article Four hereof, or provision satisfactory to the Trustee shall
have been made for mailing such notice. In determining whether the holders of
the requisite principal amount of outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder,
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 7.02
and (ii) the principal amount of a Debt Security denominated in a foreign
currency or currencies shall be the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the principal amount (or, in
the case of an Original Issue Discount Security denominated in such foreign
currency, the U.S. dollar equivalent on the date of original issuance of such
Debt Security of the amount determined as provided in (i) above) of such Debt
Security.
Paying Agent:
The term "Paying Agent" means Bank One Trust Company, N.A. or any other
Persons authorized by the Corporation to pay the principal of (and premium, if
any) or interest, if any, on any Debt Securities of any series denominated in
Dollars on behalf of the Corporation.
Person:
The term "person" or "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust, an
unincorporated organization, or a government or an agency or political
subdivision thereof.
Place of Payment:
The term "Place of Payment", when used with respect to the Debt Securities
of any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series are
payable, as contemplated by Section 2.01.
Principal Financial Center:
The term "Principal Financial Center" means, unless otherwise specified in
accordance with Section 2.01:
o the capital city of the country issuing the Foreign Currency or currency
unit, except that with respect to Dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, South African rand and Swiss francs, the
"Principal Financial Center" will be The City of New York, Sydney and Melbourne,
Toronto, Frankfurt, Amsterdam, Johannesburg and Zurich, respectively, or
-7-
o the capital city of the country to which the LIBOR Currency relates,
except that with respect to Dollars, Canadian dollars, Deutsche marks, Dutch
guilders, Portuguese escudos, South African rand and Swiss francs, the
"Principal Financial Center" will be The City of New York, Toronto, Frankfurt,
Amsterdam, London, Johannesburg and Zurich, respectively.
Record Date:
The term "Record Date", when used with respect to an interest payment date
for a series of Debt Securities, shall mean the date fixed by a Board Resolution
or indenture supplemental hereto referred to in Section 2.01 for the
determination of the holders of such Debt Securities entitled to payments of
interest on such interest payment date.
Responsible Officer:
The term "responsible officer" of the Trustee hereunder shall mean any
officer within the corporate trust office of the Trustee, which may include the
chairman and vice chairman of the board of directors, the president, the
chairman of the executive committee of the board of directors, the chairman of
the trust committee, every vice president or officer senior thereto, every
assistant vice president, the secretary, every assistant secretary, the
treasurer, every assistant treasurer, every trust officer, every assistant trust
officer, and every other officer and assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
Stock Exchange
The term "Stock Exchange", unless specified otherwise with respect to any
particular series of Debt Securities, means the Luxembourg Stock Exchange.
Subsidiary:
The term "subsidiary" shall mean any corporation, association or business
trust at least a majority of the shares of the voting stock of which shall at
the time be owned, directly or indirectly, by the Corporation or by one or more
subsidiaries or by the Corporation and one or more subsidiaries.
Substitute Date:
The term "Substitute Date" has the meaning specified in Section 7.13.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean such act as amended to
the date of this Indenture; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
-8-
Trustee:
The term "Trustee" shall mean the person named as Trustee in the first
paragraph of this Indenture and, subject to the provisions of Article Eleven
hereof, its successors and assigns. If, pursuant to the terms hereof, more than
one person shall be designated as Trustee hereunder, then the term "Trustee"
when used with respect to the Debt Securities of any series shall mean the
Trustee for such series.
Voting stock:
The term "voting stock", as applied to the stock (or the equivalent
thereof, in the case of corporations incorporated outside the continental limits
of the United States of America) of any corporation, shall mean stock (or such
equivalent) of any class or classes, however designated, having ordinary voting
power for the election of directors of such corporation, other than stock (or
such equivalent) having such power only by reason of the happening of a
contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Eleven.
ARTICLE TWO
ISSUE, EXECUTION, AUTHENTICATION, REGISTRATION, AND EXCHANGE OF
DEBT SECURITIES
Section 2.01. The aggregate principal amount of Debt Securities which may
be executed by the Corporation and authenticated and delivered under this
Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of any
series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Debt Securities of the series pursuant to this Indenture);
(3) the date or dates on which the principal of (and premium, if
any, on) the Debt Securities of the series is payable;
(4) the Person to whom any interest on a Debt Security of the series
shall be payable, if other than the Person in whose name that Debt
Security is registered at the close of business on the Record Date for
such interest; the rate or rates (which may be fixed or variable) at which
the Debt Securities of the series shall bear interest, if any,
-9-
or the method of determining such rate or rates; the date or dates from
which such interest shall accrue, the interest payment dates on which such
interest shall be payable and the Record Dates for the determination of
Debt Securityholders to whom interest is payable;
(5) the designation of the office or agency of the Corporation in
the Borough of Manhattan, The City of New York, or in such other
jurisdiction as may be designated in writing by the Corporation, where the
Debt Securities of the series may be presented for payment, may be
transferred or exchanged by the registered holders thereof or by their
attorneys duly authorized in writing, and where notices and demands in
respect of the Indenture and the Debt Securities of the series may be
served;
(6) the price or prices at which, the period or periods within
which, and the terms and conditions upon which the Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Corporation, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Corporation to redeem, purchase,
or repay the Debt Securities of any series pursuant to any sinking fund or
analogous provisions or at the option of a Debt Securityholder thereof,
and the price or prices at which and the period or periods within which
and the terms and conditions upon which the Debt Securities of such series
shall be redeemed, purchased, or repaid, in whole or in part, pursuant to
such obligation;
(8) the denominations in which the Debt Securities of the series
shall be issuable if other than $1,000 and integral multiples thereof, and
if less than $1,000, the principal amount which shall be entitled to one
vote pursuant to Section 9.05 hereof;
(9) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 7.02 hereof;
(10) any events of default with respect to the Debt Securities of
the particular series, whether or not different from those set forth
herein;
(11) the Trustee with respect to the Debt Securities of the series;
(12) if other than the Trustee named in the first paragraph of this
Indenture or its successors or assigns, the designation of the agent to
authenticate the Debt Securities of the series, and the registrar and
paying agent, which agents shall be acceptable to both the Corporation and
the Trustee;
(13) the currency or currencies, including composite currencies, in
which payment of the principal of and any premium and interest on the Debt
Securities of the series shall be payable if other than the currency of
the United States of America and the particular provisions applicable
thereto, in accordance with, in addition to or in lieu of the provisions
of Section 2.10;
-10-
(14) if the amount of payments of principal of and any premium or
interest on the Debt Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(15) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in such
case, the Depositary for such Global Security or Securities;
(16) if other than as provided in Section 2.04, the manner in which
principal of (and premium, if any) and interest, if any, on the Debt
Securities shall be payable;
(17) if other than as provided in Article 12, the manner in which
the Debt Securities of the series are to be defeased;
(18) if the principal of (and premium, if any) and interest, if any,
on the Debt Securities of that series are to be payable, at the election
of the Corporation or a holder of a beneficial interest in a Global
Security thereof, in a currency or currency unit other than that in which
such Debt Securities are denominated or stated to be payable, in
accordance with provisions in addition to or in lieu of, or in accordance
with the provisions of, Section 2.10, the period or periods within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the currency or currency unit in which such Debt
Securities are denominated or stated to be payable and the currency or
currency unit in which such Debt Securities are to be so payable;
(19) the designation of the original Currency Determination Agent,
if any; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution or in any such indenture supplemental hereto.
Section 2.02. The Debt Securities of each series and the relevant
certificate of authentication shall be in the form (including global form)
approved by or pursuant to a Board Resolution, or established in one or more
indentures supplemental hereto. The Debt Securities shall be authenticated by
the Trustee or an agent designated by the Trustee.
The Debt Securities shall be registered Debt Securities without coupons.
The Debt Securities may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements typewritten,
printed, lithographed, or engraved thereon as the Corporation may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Debt Securities may be listed, or to conform to usage.
-11-
Only such of the Debt Securities as shall bear thereon a certificate
substantially in the form of the certificate of authentication approved by or
pursuant to a Board Resolution or established in one or more indentures
supplemental hereto, manually executed by the Trustee or an agent designated by
the Trustee, shall be valid or become obligatory for any purpose or entitle the
holder thereof to any right or benefit under this Indenture, and such
certificate of authentication upon any such Debt Security executed as aforesaid
shall be conclusive evidence that the Debt Security so authenticated has been
duly authenticated and delivered hereunder and that the holder thereof is
entitled to the benefits of this Indenture.
Section 2.03. The Debt Securities shall be signed in the name and on
behalf of the Corporation by the original or facsimile signature of its
Chairman, Vice Chairman, President, or any Vice President and an original or
facsimile of its corporate seal shall be attested by the original or facsimile
signature of the Secretary or an Assistant Secretary of the Corporation. The
Debt Securities shall then be delivered to the Trustee or an agent for
authentication so designated by the Trustee, and thereupon, as provided in
Section 3.01, the Trustee or an agent designated by the Trustee shall
authenticate and deliver such Debt Securities. In case any officer of the
Corporation who shall have signed any of the Debt Securities shall cease to be
such officer of the Corporation before the Debt Securities so signed shall have
been actually authenticated and delivered, such Debt Securities may nevertheless
be issued, authenticated, and delivered as though the person who signed such
Debt Securities had not ceased to be such officer of the Corporation; and also
any of the Debt Securities may be signed on behalf of the Corporation by such
persons as, at the actual date of the execution of such Debt Securities, shall
be the proper officers of the Corporation, although at the date of the execution
of this Indenture any such person was not such officer.
Section 2.04. Each Debt Security shall be dated the date of its
authentication unless otherwise provided by or pursuant to a Board Resolution or
established in one or more indentures supplemental hereto.
Unless otherwise provided as contemplated by Section 2.01 with respect to
any series of Debt Securities, the person in whose name any Debt Security is
registered in the register at the close of business on any Record Date with
respect to any applicable interest payment date for such Debt Security shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Debt Security upon any registration of
transfer or exchange thereof subsequent to such Record Date and prior to such
interest payment date; provided, however, that if and to the extent the
Corporation shall default in the payment of the interest due on such interest
payment date, the defaulted interest shall be paid to the persons in whose names
outstanding Debt Securities are registered on a subsequent record date for the
payment of such defaulted interest established by notice given by mail by or on
behalf of the Corporation to the holders of Debt Securities not less than
fifteen days preceding such subsequent record date, such subsequent record date
to be not less than five days preceding the date of payment of such defaulted
interest.
Unless otherwise provided as contemplated by Section 2.01 with respect to
any series of Debt Securities, the principal of (and premium, if any) and
interest, if any, on the Debt Securities shall be payable at the office or
agency of the Corporation maintained for such purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the
-12-
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts; provided, however, that interest on the
Debt Securities may be paid by check mailed to the registered holders thereof at
their addresses as the same shall from time to time appear on the register of
the Corporation.
Notwithstanding the foregoing, a holder of $1,000,000 or more in aggregate
principal amount of Debt Securities of any series of Global Securities (or its
equivalent in a Foreign Currency, if the currency unit is a Foreign Currency),
whether having identical or different terms and provisions, having the same
interest payment dates will be entitled to receive interest payments, other than
at Maturity, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee for the Debt
Securities of such series at least 15 days prior to the applicable interest
payment date. In addition to the foregoing, a holder of $1,000,000 or more in
aggregate principal amount of Debt Securities of any series of Global Securities
(or its equivalent in a Foreign Currency, if the currency unit is a Foreign
Currency), whether having identical or different terms and provisions, having
the same Maturity will be entitled to receive payment at Maturity by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee for the Debt
Securities of such series at least 15 days prior to Maturity; provided; however,
that such payments shall be made subject to applicable laws and regulations and
only after surrender of the Global Securities to the Corporation, the corporate
trust office or the Paying Agent or the London Paying Agent, as applicable, for
such Global Securities not later than one Business Day prior to Maturity. Any
wire instructions received by the Trustee for the Securities of such series
shall remain in effect until revoked by the Holder.
Unless otherwise provided or contemplated by Section 2.01, every permanent
Global Security will provide that interest, if any, payable on any interest
payment date will be paid to the Depositary or its nominee or any clearing
agency or Paying Agent or London Paying Agent or their respective nominees as
the registered owner and holder of the Global Security.
Section 2.05. (a) Pending the preparation of definitive Debt Securities of
any series, the Corporation may execute and cause to be authenticated and
delivered, in accordance with the terms of this Indenture, temporary Debt
Securities which are printed, lithographed, typewritten, mimeographed, or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Debt Securities in lieu of which they are issued, and with
such appropriate insertions, omissions, substitutions, and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
execution of such Debt Securities.
If temporary Debt Securities of any series are issued, the Corporation
will cause definitive Debt Securities of the same series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities, the
temporary Debt Securities shall be exchangeable for definitive Debt Securities
of the same series, containing the same terms as the temporary Debt Securities
surrendered, upon surrender of the temporary Debt Securities at the office or
agency of the Corporation in the Borough of Manhattan, The City of New York, or
in such other jurisdiction as may be designated in writing by the Corporation,
as provided in Section 6.02, without charge to the Debt Securityholder. Upon
surrender for cancellation of any one or more temporary Debt Securities, the
Corporation shall execute and cause to be authenticated and
-13-
delivered in exchange therefor an equal aggregate principal amount of definitive
Debt Securities of authorized denominations of the same series and of like
tenor. Until so exchanged, the duly authenticated temporary Debt Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of the same series authenticated and delivered
hereunder.
(b) If the Corporation shall establish pursuant to Section 2.01 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Corporation shall execute and the
Trustee or an agent designated by the Trustee shall, in accordance with Section
2.01 and pursuant to an Officer's Order, authenticate and deliver one or more
Global Securities in temporary or permanent form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of the
outstanding Debt Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee or an agent designated by the Trustee to such
Depositary or pursuant to such Depositary's instruction, and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Debt Securities in definitive form, this Global Security
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such Successor Depositary."
Notwithstanding any other provision of this Section 2.05 or Section 2.06,
unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, a Global Security representing all or a portion of the Debt
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Debt Securities of a series notifies
the Corporation that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Debt Securities
of a series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Corporation shall appoint a successor Depositary with respect to
the Debt Securities of such series. If a successor Depositary for the Debt
Securities of such series is not appointed by the Corporation within 90 days
after the Corporation receives such notice or becomes aware of such condition,
the Corporation will execute and the Trustee or an agent designated by the
Trustee, upon receipt of an Officer's Order instructing the Trustee or its agent
to authenticate and deliver definitive Debt Securities of such series, will
authenticate and deliver Debt Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Corporation may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Corporation will execute
-14-
and the Trustee or an agent designated by the Trustee, upon receipt of an
Officer's Order instructing the Trustee or its agent to authenticate and deliver
Debt Securities of such series, will authenticate and deliver Debt Securities of
such series in definitive form and in an aggregate principal amount equal to the
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Corporation pursuant to Section 2.01 with respect to
Debt Securities of a series, the Depositary for such series of Debt Securities
may surrender a Global Security for such series of Debt Securities in exchange,
in whole or in part, for Debt Securities of such series in definitive form on
such terms as are acceptable to the Corporation and such Depositary. Thereupon,
the Corporation shall execute and the Trustee or an agent designated by the
Trustee, upon receipt of an Officer's Order, shall authenticate and deliver,
without charge,
(i) to each person specified by the Depositary, a new Debt Security
or Securities of the same series of any authorized denomination as
requested by such person in an aggregate principal amount equal to and in
exchange for such person's beneficial interest in the Global Security; and
(ii) to the Depositary, a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to holders thereof.
Upon the exchange of a Global Security for Debt Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Debt Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debt Securities to the persons in whose names such Debt Securities are so
registered.
Section 2.06. The Corporation will keep, at the office or agency to be
maintained by it in the Borough of Manhattan, The City of New York, or in such
other jurisdiction as may be designated in writing by the Corporation, as
provided in Section 6.02, a register for the registration of transfer of the
Debt Securities, as in this Indenture provided (the "register"), which register
shall at all times be open for inspection by the Trustee. Such register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time.
Upon surrender for registration of transfer of any Debt Security at either
of such offices or agencies, the Corporation shall execute and cause to be
authenticated and delivered a Debt Security or Debt Securities of the same
series for an equal aggregate principal amount, like tenor, and with a maturity
or maturities in accordance with the terms of such Debt Security or Debt
Securities, in such authorized denomination or denominations and registered in
such name or names as may be requested.
Debt Securities in their several authorized denominations are exchangeable
for a Debt Security or Debt Securities of the same series, in authorized
denominations and an equal aggregate principal amount, like tenor, and with a
maturity or maturities in accordance with the terms of such Debt Security or
Debt Securities. Debt Securities to be exchanged as aforesaid
-15-
shall be surrendered for that purpose by the registered holder thereof at such
office or agency and the Corporation shall execute and cause to be authenticated
and delivered, in exchange therefor, the Debt Security or Debt Securities of the
same series in such authorized denomination or denominations as the Debt
Securityholder making the exchange shall have requested and shall be entitled to
receive. The Corporation shall not be required to make any exchange or
registration of transfer of (1) any Debt Security which shall have been
designated for redemption in whole or in part, except, in the case of any Debt
Security to be redeemed in part, the portion thereof not to be so redeemed or
(2) any Debt Security for a period of 15 days next preceding any selection of
Debt Securities for redemption.
All Debt Securities presented or surrendered for registration of transfer,
exchange, or payment shall (if so required by the Corporation, the Trustee, or
any agent) be accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Corporation, the Trustee, or such agent, duly executed
by the registered holder or by his attorney duly authorized in writing.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any stamp tax or other governmental charge payable in connection therewith.
The Corporation, its agents, and the Trustee may deem and treat the person
in whose name any Debt Security is registered as the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Corporation, its
agents, and the Trustee shall not be affected by any notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Corporation,
the Trustee, and any agent of the Corporation or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall impair, as between a Depositary and such holders of
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary as holder of any Debt Security.
Section 2.07. In case any Debt Security shall become mutilated or be
destroyed, lost or stolen, and subject to the conditions hereinafter set forth,
the Corporation in the case of a mutilated Debt Security shall, and in the case
of a lost, stolen, or destroyed Debt Security may, in its discretion, execute,
and thereupon the Trustee or an agent designated by the Trustee shall
authenticate and deliver, or cause to be authenticated and delivered, a new Debt
Security of the same series, tenor, and principal amount and bearing a different
number not contemporaneously outstanding, in exchange and substitution for and
upon cancellation of the mutilated Debt Security or in lieu of and substitution
for the Debt Security so destroyed, lost, or stolen; provided, however, that if
any such mutilated, destroyed, lost, or stolen Debt Security shall have become
payable upon the maturity thereof, the Corporation may, instead of issuing a
substitute Debt Security, pay or authorize the payment of such Debt Security
without requiring the
-16-
surrender thereof (except in the case of a mutilated Debt Security). The
applicant for any substitute Debt Security or for payment of any such mutilated,
destroyed, lost, or stolen Debt Security shall furnish to the Corporation, the
Trustee, or any agent designated by the Trustee evidence satisfactory to them,
in their discretion, of the ownership of and the destruction, loss, or theft of
such Debt Security and shall furnish to the Corporation and the Trustee or any
agent designated by the Trustee indemnity satisfactory to them, in their
discretion, and, if required, shall reimburse the Corporation, the Trustee, or
any agent designated by the Trustee for all expenses (including counsel fees and
expenses) in connection with the preparation, issue, and authentication of such
substitute Debt Security or the payment of such mutilated, destroyed, lost, or
stolen Debt Security, and shall comply with such other reasonable regulations as
the Corporation, the Trustee, or any agent designated by the Trustee, or any of
them, may prescribe. Any such new Debt Security delivered pursuant to this
Section 2.07 shall constitute an additional contractual obligation on the part
of the Corporation, whether or not the allegedly destroyed, lost, or stolen Debt
Security shall be at any time enforceable by anyone, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other Debt
Securities of the same series issued hereunder.
Section 2.08. Subject to the provisions set forth herein relating to
Record Dates and record dates for the payment of any defaulted interest, each
Debt Security delivered pursuant to any provision of this Indenture in exchange
or substitution for, or upon registration of transfer of, any other Debt
Security of the same series shall carry all the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debt Security.
Section 2.09. All Debt Securities included in any one series need not be
issued by the Corporation at the same time. Unless otherwise provided, a series
may be reopened for issuances of additional securities in such securities upon
delivery of an Officer's Order to the Trustee.
Section 2.10. Unless otherwise specified in accordance with Section 2.01
with respect to any series of Debt Securities, the following provisions shall
apply:
(a) subject to paragraph (b) below, the principal of, premium, if
any, and interest on Debt Securities of any series denominated in a Foreign
Currency or currency unit will be payable by the Corporation in Dollars based on
the equivalent of that Foreign Currency or currency unit converted into Dollars
in the manner described in paragraphs (c) and (d) below.
(b) It may be provided pursuant to Section 2.01 with respect to Debt
Securities of any series denominated in a Foreign Currency or currency unit that
holders of beneficial interests in a Debt Security shall have the option,
subject to paragraph (d) below, to receive payments of principal of, premium, if
any, and interest on such Debt Securities in such Foreign Currency or currency
unit by delivering to the Trustee (or to any duly appointed Paying Agent or
London Paying Agent) for such Debt Securities of that series a written election,
to be in form and substance satisfactory to such Trustee (or to any such Paying
Agent or London Paying Agent), not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a holder so
elects to receive such payments in such Foreign Currency or currency unit, such
election will remain in effect for such holder until changed by such holder by
written notice to the Trustee (or to any such Agent) for the Debt Securities of
-17-
that series; provided, however, that any such change must be made not later than
the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date;
and provided, further, that no such change or election may be made with respect
to payments to be made on any Debt Security of such series with respect to which
an Event of Default has occurred, the Corporation has exercised any defeasance,
satisfaction or discharge options pursuant to Article Twelve or notice of
redemption has been given by the Corporation pursuant to Article Four. If any
holder makes any such election, such election will not be effective as to any
transferee of such Holder and such transferee shall be paid in Dollars unless
such transferee makes an election as specified above. Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee (or to any duly appointed Paying Agent or London Paying Agent) for the
Debt Securities of such series not later than the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in Dollars.
(c) With respect to any Debt Securities of any series denominated in
a Foreign Currency or currency unit and payable in Dollars, the amount of
Dollars so payable will be determined by the Currency Determination Agent based
on the highest indicative quotation in The City of New York selected by the
Currency Determination Agent at approximately 11:00 A.M., New York City time, on
the second Business Day preceding the applicable payment date. Such selection
shall be made from among the quotations appearing on the bank composite or
multi-contributor pages of three recognized foreign exchange dealers (one of
which may be the Currency Determination Agent). The first three such foreign
exchange dealers selected by the Currency Determination Agent which are offering
quotes on the specified Foreign Currency shall be used. If such quotations are
unavailable from at least three recognized foreign exchange dealers payments
shall be made in the Foreign Currency or currency unit. All currency exchange
costs associated with any payment in Dollars on any such Registered Securities
will be borne by the holder thereof by deductions from such payment.
(d) If a Conversion Event occurs with respect to a Foreign Currency
or currency unit in which Debt Securities of any series are payable, then with
respect to each date for the payment of principal of, premium, if any, and
interest on the Debt Securities of that series occurring after the last date on
which such Foreign Currency or currency unit was used, the Corporation may make
such payment in Dollars. The Dollar amount to be paid by the Corporation to the
Trustee for the Debt Securities of such series and by such Trustee or any Paying
Agent for the Debt Securities of such series to the holders of such Debt
Securities with respect to such payment date shall be determined by the Currency
Determination Agent on the basis of the Market Exchange Rate as of the second
Business Day preceding the applicable payment date or, if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate, or as otherwise established pursuant to Section 2.01 with respect
to such series of Debt Securities; provided; however, that if a Conversion Event
occurs with respect to the euro, the equivalent of the euro in Dollars as of any
date shall be determined by the Currency Determination Agent on the following
basis: The Component Currencies of the euro for this purpose shall be the
currency amounts that were components of the euro as of the last date on which
the ECU was used in the European Monetary System. The equivalent of the euro in
Dollars shall be calculated by aggregating the Dollar equivalents of the
Component Currencies. The Dollar equivalent of each of the Component Currencies
shall be determined by the applicable Paying Agent, London Paying Agent or the
Currency
-18-
Determination Agent on the basis of the most recently available Market Exchange
Rates for such components. Any payment in respect of such Debt Security made
under such circumstances in Dollars will not constitute an Event of Default
hereunder.
(e) For purposes of this Indenture the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which is a component
currency of any currency unit.
"Election Date" shall mean, for the Debt Securities of any series,
the date specified pursuant to Section 2.01(18).
(f) Notwithstanding any other provisions of this Section 2.10, the
following shall apply: (i) if the official unit of any Component Currency is
altered by way of combination or subdivision, the number of units of that
currency as a component shall be divided or multiplied in the same proportion,
(ii) if two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as components shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such a single currency, (iii) if
any Component Currency is divided into two or more currencies, the amount of
that original Component Currency as a component shall be replaced by the amounts
of such two or more currencies having an aggregate value on the date of division
equal to the amount of the former Component Currency immediately before such
division and (iv) in the event of an official redenomination of any currency
(including, without limitation, a currency unit), the obligations of the
Corporation to make payments in or with reference to such currency on the Debt
Securities of any series shall, in all cases, be deemed immediately following
such redenomination to be obligations to make payments in or with reference to
that amount of redenominated currency representing the amount of such currency
immediately before such redenomination.
(g) All determinations referred to in this Section 2.10 made by the
Currency Determination Agent shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the holders of the applicable Debt Securities. The Currency
Determination Agent shall promptly give written notice to the Trustee for the
Securities of such series of any such decision or determination. The Currency
Determination Agent shall have no liability for any determinations referred to
in this Section 2.10 made by it.
(h) The Trustee for the Debt Securities of a particular series shall
be fully justified and protected in relying and acting upon information received
by it from the Corporation and the Currency Determination Agent with respect to
any of the matters addressed in or contemplated by this Section 2.10 and shall
not otherwise have any duty or obligation to determine such information
independently.
Section 2.11. If and so long as the Debt Securities of any series (a) are
denominated in a currency unit or a currency other than Dollars or (b) may be
payable in a currency unit or a currency other than Dollars, or so long as it is
required under any other
-19-
provision of this Indenture, then the Corporation shall maintain with respect to
each such series of Securities, or as so required, a Currency Determination
Agent. The Corporation shall cause the Currency Determination Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 2.10 for the purpose of determining the applicable
rate of exchange and for the purpose of converting the issued currency or
currency unit into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 2.10.
If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Debt Securities of one or
more series, the Corporation, by an Officer's Order, shall promptly appoint a
successor Currency Determination Agent or Currency Determination Agents with
respect to the Debt Securities of that or those series (it being understood that
any such successor Currency Determination Agent may be appointed with respect to
the Debt Securities of one or more or all of such series and that at any time
there shall only be one Currency Determination Agent with respect to the Debt
Securities of any particular series).
No resignation of the Currency Determination Agent and no appointment of a
successor Currency Determination Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Corporation and the Trustee of the appropriate series of Debt Securities
accepting such appointment executed by the successor Currency Determination
Agent.
Section 2.12. Subject to Section 2.10, each reference to any currency or
currency unit in any Debt Security, or in the Board Resolution or supplemental
indenture relating thereto, shall mean only the referenced currency or currency
unit and no other currency or currency unit.
The Trustee and each Paying Agent and London Paying Agent shall segregate
moneys, funds and accounts held by the Trustee and such Paying Agent or London
Paying Agent in one currency or currency unit from any moneys, funds or accounts
held in any other currencies or currency units, notwithstanding any provision
herein which would otherwise permit the Trustee or any Paying Agent or London
Paying Agent to commingle such amounts.
Whenever any action or act is to be taken hereunder by the holders of Debt
Securities denominated in a Foreign Currency or currency unit, then for purposes
of determining the principal amount of Debt Securities held by such holders, the
aggregate principal amount of the Debt Securities denominated in a Foreign
Currency or currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for such series in an Officers' Certificate
for such Foreign Currency or currency unit into Dollars as of the date the
taking of such action or act by the holders of the requisite percentage in
principal amount of the Debt Securities is evidenced to such Trustee.
-20-
ARTICLE THREE
ISSUE OF DEBT SECURITIES
Section 3.01. At any time and from time to time after the execution and
delivery of this Indenture the Corporation may deliver to the Trustee Debt
Securities duly executed by the proper officers of the Corporation. The Trustee
or an agent designated by the Trustee shall authenticate and deliver the Debt
Securities pursuant to an Officer's Order.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee or any agent designated by the Trustee shall be entitled to receive, and
shall be fully protected in relying upon:
(1) a copy of any Board Resolution by or pursuant to which the terms of
such series were established and, if applicable, an appropriate record of any
action taken pursuant to such resolution;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate prepared in accordance with Section 15.04 and
which shall also state that the Corporation is not in default under the
provisions of this Indenture; and
(4) an Opinion of Counsel prepared in accordance with Section 15.04 which
shall also state:
(a) that the form of such Debt Securities has been established by or
pursuant to a Board Resolution or by a supplemental indenture in
conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established by
or pursuant to a Board Resolution or by a supplemental indenture in
conformity with the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and delivered by
the Trustee or any agent designated by the Trustee and issued by the
Corporation in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid, and binding obligations
of the Corporation, 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; and
(d) that all laws and requirements in respect of the execution and
delivery by the Corporation of the Debt Securities have been complied with
and that authentication and delivery of the Debt Securities by the Trustee
or any agent designated by the Trustee will not violate the terms of this
Indenture.
-21-
Notwithstanding the provisions of this Section 3.01, if all Debt
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Board Resolution, Officers' Certificate, or the
Opinion of Counsel otherwise required pursuant to this Section at or prior to
the time of authentication of each Debt Security of such series if such
documents are delivered at or prior to the time of authentication upon original
issuance of the first Debt Security of such series to be issued.
After any such first delivery of Debt Securities of a series, any separate
request by the Corporation that the Trustee authenticate Debt Securities of such
series for original issue will be deemed to be a certification by the
Corporation that all conditions precedent provided for in this Indenture
relating to authentication and delivery of such Debt Securities continue to have
been complied with.
The Trustee shall be entitled pursuant to Section 15.04 to request such
additional information and shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 3.01 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its Board of Directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
or assistant vice presidents shall determine that such action would expose the
Trustee to personal liability to existing Debt Securityholders or would
adversely affect the Trustee's rights, duties, obligations, or immunities under
this Indenture.
ARTICLE FOUR
REDEMPTION OF DEBT SECURITIES
Section 4.01. Debt Securities of any series which are redeemable pursuant
to their terms shall be redeemable in accordance with the terms and provisions
thereof and in accordance with this Article Four. The election of the
Corporation to redeem all or part of the Debt Securities of any series shall be
evidenced by a Board Resolution.
Section 4.02 In the event of redemption at any time of all or a part of
any series of Debt Securities, the Corporation shall, at least 60 days prior to
the redemption date (unless a shorter notice shall be consented to by the
Trustee), give written notice to the Trustee of the tenor and the principal
amount of the Debt Securities of such series to be redeemed and specifying the
date on which it is proposed that notice of such redemption will be mailed and
the date of redemption. After receipt of such notice, if such redemption is of
only a part of a series of Debt Securities, the Trustee shall select, in any
manner deemed by the Trustee to be fair and appropriate, the Debt Securities or
portions thereof (in multiples of $1,000 or such other authorized amounts) to be
redeemed and shall notify the Corporation of the particular Debt Securities or
portions thereof selected for redemption.
On or prior to the date fixed for redemption specified in the notice of
redemption given as provided in this Section 4.02, the Corporation will deposit
with the Trustee or with any paying agent (or if the Corporation is acting as
its own paying agent, segregate and hold in trust as provided in Section 6.03)
an amount of money sufficient to redeem on the date fixed for
-22-
redemption all the Debt Securities called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption.
Section 4.03. In case the Corporation shall elect to redeem any Debt
Securities or any portion thereof pursuant to this Article Four, it shall give
notice of its election to do so by mailing written notice, first class postage
prepaid, at least 30 days prior to the redemption date, to all holders of Debt
Securities to be redeemed, addressed to them at their respective addresses as
the same shall then appear in the register of the Corporation. Any notice which
shall be mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder shall receive such notice.
Failure to mail such notice, or any defect in the notice mailed, to the holder
of any Debt Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Debt
Security. The notice to each such holder shall state such election on the part
of the Corporation, the redemption date, the place of payment and redemption,
the redemption price, and, in case of partial redemption of a series of Debt
Securities, the particular Debt Securities of such series to be redeemed in
whole or in part and, if a portion of any Debt Security is to be redeemed, the
amount of such portion, and that the interest, if any, on the Debt Securities or
portions thereof specified in such notice for redemption shall cease to accrue
on the redemption date.
Notice having been so given by mail, the Debt Securities or portions
thereof so designated for redemption shall, on the redemption date specified in
such notice, become due and payable at the redemption price thereof, determined
as provided in the Board Resolution or supplemental indenture establishing such
series; provided, however, that if the redemption date shall be the same as an
interest payment date, such interest shall be payable to the holders of the Debt
Securities on the applicable Record Date; and from and after the redemption date
so specified (unless the Corporation shall default in the payment of the
redemption price) interest, if any, on such series of Debt Securities or
portions thereof shall cease to accrue and, upon presentation of the Debt
Securities of such series at said place of payment and redemption in accordance
with said notice, the Debt Securities of such series or portions thereof shall
be paid by the Corporation at the redemption price aforesaid. If the Debt
Securities of such series or portions thereof shall not be so paid upon
presentation thereof, the principal and the premium, if any (and, to the extent
that interest thereon shall be legally enforceable, the interest), included in
such redemption price shall, until paid, bear interest from the redemption date
at the rate expressed in the Debt Securities.
Upon the partial redemption of any Debt Security of an authorized
denomination, and upon the surrender thereof to the Trustee or any paying agent
and either payment by the Trustee or any paying agent of the redemption price of
the portion thereof called for redemption or the receipt by the Trustee or any
paying agent of evidence satisfactory to it of the payment of such redemption
price, the Trustee or any agent designated by the Trustee shall authenticate and
deliver to or on the order of the registered holder of such Debt Security,
without charge, a new Debt Security or Debt Securities, of the same series, of
like tenor, and in an aggregate principal amount equal to the unredeemed portion
of the Debt Security or Debt Securities so surrendered, each new Debt Security
to be in such authorized denomination as such registered holder may elect. If a
Global Security is so surrendered, such new Debt Security so issued shall be a
new Global Security.
-23-
Section 4.04. All Debt Securities redeemed and paid pursuant to the
provisions of this Article Four shall be canceled and disposed of as provided in
Section 15.05, and, except in the case of partial redemption of any Debt
Security, no Debt Security shall be issued under this Indenture in lieu thereof.
ARTICLE FIVE
SINKING FUNDS
Section 5.01. The provisions of this Article Five shall be applicable to
any sinking fund established in or pursuant to a Board Resolution or one or more
indentures supplemental hereto for the retirement of Debt Securities of any
series except as otherwise specified or contemplated by Section 2.01 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Debt 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 Debt Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debt Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 5.02. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by the terms of Debt
Securities of such series.
Section 5.02. The Corporation (1) may deliver outstanding Debt Securities
of a series (other than any previously called for redemption) that have been
held by the Corporation as treasury securities and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Corporation pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 5.03. Not less than 60 days prior to each sinking fund payment
date for any series of Debt Securities, the Corporation will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash, and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Debt Securities of that series pursuant to Section 5.02 and will also deliver to
the Trustee any Debt Securities to be so credited which have not theretofore
been delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Debt Securities of such series to be redeemed upon
such sinking fund payment date in the manner specified in Section 4.02 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 4.03. Such notice having
been duly given, the
-24-
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 4.02 and 4.03.
ARTICLE SIX
PARTICULAR COVENANTS OF THE CORPORATION
The Corporation hereby covenants and agrees for the benefit of each series
of Debt Securities as follows:
Section 6.01. The Corporation will duly and punctually pay the principal
of (and premium, if any, on) each of the Debt Securities of such series, and the
interest, if any, which shall have accrued thereon, at the dates and place and
in the manner mentioned in such Debt Security, according to the true intent and
meaning thereof. The interest, if any, on any Debt Security of such series shall
be payable to the registered holder thereof as shown on the register of the
Corporation and as provided in Section 2.04. When and as paid, all Debt
Securities of such series shall be canceled and disposed of as provided in
Section 15.05, and no Debt Securities of such series shall be issued under this
Indenture in lieu thereof.
Section 6.02. If Debt Securities of a series are issuable only as Global
Securities, the Corporation will maintain in each Place of Payment for that
series an office or agency where Debt Securities of that series may be presented
or surrendered for payment, an office or agency where Debt Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Corporation with respect to the Debt
Securities of that series and this Indenture may be served. If Debt Securities
of a series are issuable in definitive form, the Corporation will maintain (A)
an office or agency (which may be the same office or agency) in a Place of
Payment for that series in the United States where any Global Securities of that
series may be presented or surrendered for payment, where any Global Securities
of that series may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Corporation in respect of the Debt Securities of that
series and this Indenture may be served and where definitive securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Debt Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Debt Securities of that
series are listed on the Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the
Corporation will maintain a Paying Agent for the Securities of that series in
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Global Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Corporation in respect of the Debt Securities of that series and this Indenture
may be served. The Corporation will give prompt written notice to the Trustee
for the Debt Securities of that series of the location, and any change in the
location, of any such office or agency. If at any
-25-
time the Corporation shall fail to maintain any such required office or agency
in respect of any series of Debt Securities or shall fail to furnish the Trustee
for the Debt Securities of that series with the address thereof, such
presentations (to the extent permitted by law), and surrenders of Debt
Securities of that series may be made and notices and demands may be made or
served at the corporate trust office of such Trustee, except that securities
issued in definitive form of that series and the related coupons may be
presented and surrendered for payment at the offices specified in the Debt
Security, and the Corporation hereby appoint the same as their agent to receive
such respective presentations, surrenders, notices and demands.
No payment of principal (and premium, if any) or interest, if any, on
securities issued in definitive form shall be made at any office or agency of
the Corporation in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States. Payments will not be made in respect of securities issued in
definitive form or coupons appertaining thereto pursuant to presentation to the
Corporation or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payment of principal of (and premium, if any) and
interest, if any, on any securities issued in definitive form denominated and
payable in Dollars will be made at the office of the Corporation's Paying Agent
in the United States, if, and only if, payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for that purpose by the
Corporation in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions and the Corporation
has delivered to the Trustee an Opinion of Counsel to that effect.
The Corporation may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation of its obligation to
maintain an office or agency in each Place of Payment for such purpose. The
Corporation will give prompt written notice to the Trustee for the Debt
Securities of each series so affected of any such designation or rescission and
of any change in the location of any such office or agency.
Section 6.03. (a) The Corporation agrees, for the benefit of the holders
from time to time of the Debt Securities, that, until all of the Debt Securities
of the applicable series are no longer outstanding or until moneys for the
payment of all of the principal of and interest on all outstanding Debt
Securities of such series shall have been made available at the principal office
of the Paying Agents, whichever occurs earlier, there shall at all times be a
Paying Agent hereunder. The Corporation agrees, for the benefit of the holders
from time to time of the Debt Securities of any series denominated in euros,
that, until all of the Debt Securities of the applicable series are no longer
outstanding or until moneys for the payment of all of the principal of and
interest on all outstanding Debt Securities of such series denominated in euros
shall have been made available at the principal office of the London Paying
Agent, whichever occurs earlier, there shall at all times be a London Paying
Agent hereunder. The Corporation hereby appoints Bank One Trust Company, N.A.,
at present having an office at 153 W.51st Street, New York, New York, as its
principal paying agent in New York, BNP Paribas, Securities Services, Luxemburg
Branch, at present having an office at 23, avenue de la Porte Neuve, 20855,
Luxembourg, and, to the extent any series of Debt Securities are denominated in
euros as
-26-
provided in Section 2.01, Bank One NA, London Branch, at present having an
office at 27 Leadenhall Street, London EC3A 1AA, as London Paying Agent in
respect of the Debt Securities, upon the terms and subject to the conditions
herein and therein set forth, it being understood that in their capacity as
Paying Agents hereunder, Bank One Trust Company, N.A., BNP Paribas Securities
Services, Luxemburg Branch, and Bank One NA, London Branch, will perform their
duties exclusively through their offices in New York, Luxembourg and London,
respectively. The Paying Agents and London Paying Agent shall arrange for the
payment, from funds furnished by the Corporation to the Paying Agents or London
Paying Agent, as applicable, of the principal of and interest on each series of
Debt Securities on the date such payments become due and payable. With respect
to each series of Debt Securities for which Bank One Trust Company, N.A., BNP
Paribas Luxembourg and Bank One NA, London Branch, serve as Paying Agents or
London Paying Agent, such Paying Agent or London Paying Agent shall have the
powers and authority granted to and conferred upon them herein and in the notes
or other instrument evidencing such series of Debt Securities.
(b) Until all of the Debt Securities are no longer outstanding, the
Corporation shall appoint a Calculation Agent. The Corporation hereby appoints
Bank One Trust Company, N.A, at present having an office at 153 W.51st Street,
New York, New York, to act as Calculation Agent with respect to each series of
Debt Securities issued in Dollars hereunder and appoints Bank One NA, London
Branch, at present having an office at 27 Leadenhall Street, London EC3A 1AA, as
London Calculation Agent with respect to each series of Debt Securities
denominated in euros, upon the terms and subject to the conditions herein set
forth. The Calculation Agent and the London Calculation Agent shall calculate
the interest applicable to any series of Debt Securities in the manner
established pursuant to Section 2.01 hereof and in such notes or other
instrument evidencing such series of Debt Securities and shall undertake all
other services hereinafter described upon the terms and subject to the
conditions herein, including, but not limited to, complying with the notice
provisions of Section 6.03(f) hereof. The Calculation Agent and the London
Calculation Agent shall have the powers and authority granted to and conferred
upon it herein and in the notes or other instrument evidencing such series of
Debt Securities.
(c) Each of the Paying Agents, the London Paying Agent, the
Calculation Agent and the London Calculation Agent is herein referred to as an
"Agent" and they are referred to collectively as the "Agents". Prior to issuing
any series of Debt Securities, the Corporation will cause such Agents to execute
and deliver to the Corporation (with a copy to the Trustee unless the Trustee or
the Paying Agent or the Calculation Agent is also such Agent) a written
instrument in which such Agent shall agree to act as such hereunder, subject to
the provisions of this Article. The Corporation may also serve as Paying Agent,
London Paying Agent, Calculation Agent or London Calculation Agent or appoint
any of its affiliates to serve as Paying Agent, London Paying Agent, Calculation
Agent or London Calculation Agent. The Corporation will give to the Trustee
(unless the Trustee, the Paying Agent or the London Calculation Agent is also
such Agent) written notice of any change in the location of any office or agency
of the Agents hereunder. The Corporation shall have the right to vary or
terminate the appointment of any such office or agency.
(d) Each Agent accepts its obligations set forth herein upon the
terms and conditions hereof and thereof. If an Agent shall change its specified
office, it shall give to
-27-
the Corporation and the Trustee (unless the Trustee, the Paying Agent or the
Calculation Agent is also such Agent) not less than 45 days' prior written
notice to that effect giving the address of the new office.
(e) (i) The Calculation Agent or the London Calculation Agent, as
applicable, shall make all calculations with respect to the rate of interest on
floating interest rate notes with respect to each series of Debt Securities and
shall notify (x) the Corporation and the Trustee (if different from the
Calculation Agent) in accordance with Section 15.07, and any Paying Agent or
London Paying Agent, as applicable, with respect to such series in accordance
with Section 6.03(f) and to any stock exchange on which such series of Debt
Securities are at the relevant time listed, not later than 12:00 p.m. (London
time, in the case of Debt Securities denominated in euros and 12:00 p.m. New
York City time, in the case of Debt Securities denominated in Dollars) on the
date on which the rate of interest is to be determined with respect to floating
interest rate notes as established pursuant to Section 2.01 and (y) to the
registered holders of any floating rate notes in accordance with Section 15.07
as soon as possible after their determination but in no event later than the
second Business Day thereafter.
(ii) The Calculation Agent or the London Calculation Agent, as
applicable, shall make all calculations with respect to the amount of interest
and/or principal due on each interest payment date or at Maturity, as
established pursuant to Section 2.01, with respect to each series of Debt
Securities and shall notify the Corporation and the Trustee (if different from
the Calculation Agent) in accordance with Section 15.07 and any Paying Agent or
London Paying Agent, as applicable, in accordance with Section 6.03(f), not
later than 12:00 p.m., London time, in the case of Debt Securities denominated
in euros and 12:00 p.m. New York City time, in the case of Debt Securities
denominated in Dollars, of such amount on the second Business Day prior to the
date on which such interest and/or principal is due and payable.
(f) Any notice or other communication required to be given hereunder
shall be delivered in person, sent by letter or telecopier or communicated by
telephone (with prompt written confirmation by telecopy) to the Paying Agents or
London Paying Agent at the addresses specified in the written instrument
delivered to the Corporation by such Agent in accordance with Section 6.03(c).
Any notice hereunder given by letter, telecopy or telex shall be deemed to have
been received when it would have been received in the ordinary course of post or
transmission, as the case may be.
(g) If the Corporation shall act as its own Paying Agent or London
Paying Agent with respect to any series of Debt Securities, it will, on or
before each due date of the principal of or interest on such series, set aside,
segregate and hold in trust for the benefit of the holders of the Debt
Securities of such series a sum sufficient to pay such principal or interest so
becoming due. The Corporation will promptly notify the Trustee of any failure to
take such action.
(h) Anything in this Section to the contrary notwithstanding, the
Corporation may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Debt Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such series by the Corporation or any Paying Agent or
London Paying Agent hereunder, as required by this Section, such sums to
-28-
be held by the Trustee upon the same trusts as those upon which such sums were
held by the Corporation or such Paying Agent or London Paying Agent.
(i) In order to provide for the payment of the principal of and
interest on the Debt Securities of any series as the same shall become due and
payable on any payment date, the Corporation hereby agrees to pay to such
account or at such offices of any Paying Agent in New York or Luxembourg or as
such Paying Agent shall specify in writing to the Corporation not less than five
Business Days prior to the payment date, in the currency of payment with respect
to the Debt Securities of such series as designated pursuant to Section 2.01, on
each interest payment date and at Maturity of the Debt Securities of such series
or any date fixed for redemption of the Debt Securities of such series (in each
case determined in accordance with the terms and conditions applicable to such
series), in immediately available funds available on such interest payment date
or at Maturity, as the case may be, in an aggregate amount which (together with
any funds then held by the Paying Agent and available for the purpose) shall be
sufficient to pay the entire amount of the principal of and/or interest, as
applicable, on the Debt Securities of such series becoming due on such interest
payment date or at Maturity, and the Paying Agent shall hold such amount in
trust and apply it to the payment of any such principal or interest on such
interest payment date or at Maturity. Unless otherwise specified as provided
above in this Section 6.03(i) or Section 6.03(j), such aggregate amount shall be
paid to the account of the Paying Agent in immediately available funds no later
than 11:00 a.m. (Paying Agents' time) on the interest payment date or at
Maturity, as the case may be. In the event any Paying Agent or London Paying
Agent is not also the Trustee, the Corporation will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree (and by its execution of this Indenture, the London Paying Agent
hereby agrees) with the Trustee, subject to the provisions of this Section 6.03
and of Section 12.03, (1) that such Paying Agent and London Paying Agent shall
hold all sums held by such Paying Agent or London Paying Agent for the payment
of the principal of (and premium, if any) or interest, if any, on the Debt
Securities of such series in trust for the benefit of the holders of the Debt
Securities of such series until such sums shall be paid out to the holders of
the Debt Securities of such series or otherwise as herein provided, (2) that
such Paying Agent or London Paying Agent shall give to the Trustee notice of any
default by the Corporation or any other obligor upon the Debt Securities of such
series in the making of any deposit with such Paying Agent and London Paying
Agent for the payment of principal (and premium, if any) or interest, if any,
which shall have become payable and of any default by the Corporation or any
other obligor upon the Debt Securities of such series in making any such
payment, and (3) that such Paying Agent and London Paying Agent shall, at any
time during the continuance of any such default, upon the written request of the
Trustee, deliver to the Trustee all sums so held in trust by it.
(j) Anything herein to the contrary notwithstanding, the Corporation
shall not later than 10.00 a.m. London time on each date on which any payment of
principal (and premium, if any) or interest in respect of any of series of Debt
Securities denominated in euros becomes due and payable transfer to Bank One, NA
Frankfurt A/C No. 1001701 or such other account as the London Paying Agent may
designate in writing in advance to the Corporation and the Trustee such amount
of euros as shall be sufficient for the purposes of the payment of principal
(and premium, if any) or interest (together with any funds then held by the
London Paying Agent and available for the purpose) in immediately available
funds or in such funds and at such times (being not later than 10.00 a.m. London
time on the relevant due date, or if the due
-29-
date is not a Business Day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) System is open, on the immediately
following Business Day). The Corporation shall ensure that not later than the
second Business Day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) System is open immediately preceding the
date on which any payment is to be made to the London Paying Agent, the London
Paying Agent shall receive a copy of an irrevocable payment instruction to the
bank through which the payment is to be made.
(k) The foregoing provisions of this Section 6.03 are subject to the
provisions of Sections 12.04, 12.05 and 12.06.
Section 6.04. (a) After the date of the execution and delivery of this
Indenture and so long as any Debt Securities shall be outstanding, the
Corporation will not pledge or otherwise subject to any lien (any such pledge or
lien being hereinafter referred to as a "Lien") any of its property or assets to
secure indebtedness for money borrowed, incurred, issued, assumed or guaranteed
by the Corporation without thereby expressly securing the due and punctual
payment of the principal of and interest on the Debt Securities equally and
ratably with any and all other obligations and indebtedness secured by such
Lien, so long as any such other obligations and indebtedness shall be so
secured; provided, however, that this restriction shall not prohibit or
otherwise restrict:
(i) the Corporation from creating, incurring or suffering to exist
upon any of its property or assets any Lien in favor of any subsidiary of the
Corporation;
(ii) the Corporation (A) from creating, incurring or suffering to
exist a purchase money Lien upon any such property, assets, capital stock or
indebtedness acquired by the Corporation prior to, at the time of, or within one
year after (1) in the case of physical property or assets, the later of the
acquisition, completion of construction (including any improvements on existing
property) or commencement of commercial operation of such property or (2) in the
case of shares of capital stock, indebtedness or other property or assets, the
acquisition of such shares of capital stock, indebtedness, property or assets,
(B) from acquiring property or assets subject to Liens existing thereon at the
date of acquisition thereof, whether or not the indebtedness secured by any such
Lien is assumed or guaranteed by the Corporation, or (C) from creating,
incurring or suffering to exist Liens upon any property of any Person, which
Liens exist at the time any such Person is merged with or into or consolidated
with the Corporation (or becomes a subsidiary of the Corporation) or which Liens
exist at the time of a sale or transfer of the properties of any such Person as
an entirety or substantially as an entirety to the Corporation;
(iii) the Corporation from creating, incurring or suffering to exist
upon any of its property or assets Liens in favor of the United States of
America or any State thereof or the District of Colombia, or any agency,
department or other instrumentality thereof, to secure progress, advance or
other payments pursuant to any contract or provision of any statute (including
maintaining self-insurance or participating in any fund in connection with
worker's compensation, disability benefits, unemployment insurance, old age
pensions or other types of social benefits, or joining in any other provisions
or benefits available to companies participating in any such arrangements);
-30-
(iv) the Corporation from creating, incurring or suffering to exist
upon any of its property or assets Liens securing the performance of letters of
credit, bids, tenders, sales contracts, purchase agreements, repurchase
agreements, reverse repurchase agreements, bankers' acceptances, leases, surety
and performance bonds, and other similar obligations incurred in the ordinary
course of business;
(v) the Corporation from creating, incurring or suffering to exist
Liens upon any real property acquired or constructed by the Corporation
primarily for use in the conduct of its business;
(vi) the Corporation from entering into any arrangement with any
Person providing for the leasing by the Corporation of any property or assets,
which property or assets have been or will be sold or transferred by the
Corporation to such Person with the intention that such property or assets will
be leased back to the Corporation, if the obligations in respect of such lease
would not be included as liabilities on a consolidated balance sheet of the
Corporation;
(vii) the Corporation from creating, incurring or suffering to exist
upon any of its property or assets Liens to secure non-recourse debt in
connection with the Corporation engaging in any leveraged or single-investor or
other lease transactions, whether (in the case of Liens on or relating to leases
or groups of leases or the particular properties subject thereto) such Liens are
on the particular properties subject to any leases involved in any of such
transactions and/or the rental or other payments or rights under such leases or,
in the case of any group of related or unrelated leases, on the properties
subject to the leases comprising such group and/or on the rental or other
payments or rights under such leases, or on any direct or indirect interest
therein, and whether (in any case) (A) such Liens are created prior to, at the
time of, or at any time after the entering into of such lease transactions
and/or (B) such leases are in existence prior to, or be entered into by the
Corporation at the time of or at any time after, the purchase or other
acquisition by the Corporation of the properties subject to such leases;
(viii) the Corporation from creating, incurring or suffering to
exist (A) other consensual Liens in the ordinary course of business of the
Corporation that secure indebtedness that, in accordance with generally accepted
accounting principles, would not be included in total liabilities as shown on
the Corporation's consolidated balance sheet, or (B) Liens created by the
Corporation in connection with any transaction intended by the Corporation to be
a sale of property or assets of the Corporation, provided that such Liens are
upon any or all of the property or assets intended to be sold, the income from
such property or assets and/or the proceeds of such property or assets;
(ix) the Corporation from creating, incurring or suffering to exist
Liens on property or assets financed through tax-exempt municipal obligations,
provided that such Liens are only on the property or assets so financed;
(x) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any of the foregoing;
provided, however, that any such extension, renewal or replacement shall be
limited to all or a part of the
-31-
property or assets (or substitutions therefor) which secured the Lien so
extended, renewed or replaced (plus improvements on such property); and
(xi) the Corporation from creating, incurring or suffering to
exist any other Lien not otherwise permitted by any of the foregoing clauses (i)
through (ix) above if the aggregate amount of all secured debt of the
Corporation secured by such Liens would not exceed 10% of the excess of the
Corporation's consolidated assets over the consolidated liabilities as shown on
the Corporation's most recent audited consolidated financial statements in
accordance with generally accepted accounting principles.
(b) For the purposes of this Section 6.04, any contract by which
title is retained as security (whether by lease, purchase, title retention
agreement or otherwise) for the payment of a purchase price shall be deemed to
be a purchase money Lien. Nothing in this Section 6.04 shall apply to any Lien
of any kind upon any of the properties of any character of the Corporation
existing on the date of execution and delivery of this Indenture.
(c) Nothing contained in this Section 6.04 or elsewhere in this
Indenture shall prevent or be deemed to prohibit the creation, assumption or
guaranty by the Corporation of any indebtedness not secured by a Lien or the
issuance by the Corporation of any debentures, notes or other evidences of
indebtedness not secured by a Lien, whether in the ordinary course of business
or otherwise.
Section 6.05. On or before April 30 in each year (commencing with the
first April 30 which is not less than 60 days following the first date of
issuance of Debt Securities of any series under this Indenture), the Corporation
will file with the Trustee a brief certificate (which need not comply with
Section 15.04), signed by the principal executive officer, the principal
financial officer, or the principal accounting officer of the Corporation,
stating whether or not the signer has knowledge of any default by the
Corporation in the performance or fulfillment of any covenant, agreement, or
condition contained in this Indenture, and, if so, specifying each such default
of which the signer has knowledge, the nature thereof, and what action, if any,
has been taken and is proposed to be taken to cure such default. For purposes of
this paragraph, such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture. Within five
days after the occurrence thereof, the Corporation will notify the Trustee in
writing of any failure by the Corporation to pay any installment of interest or
any principal (or premium, if any) which with the giving of notice by the
Trustee would be an "event of default" within the meaning of Section 7.01 (h)
hereof.
Section 6.06. Anything in this Indenture to the contrary notwithstanding,
the Corporation may fail or omit in any particular instance to comply with a
covenant or condition set forth in Section 6.04 with respect to the Debt
Securities of any series if the Corporation shall have obtained and filed with
the Trustee, before or after the time for such compliance, evidence (as provided
in Article Eight) of the consent of the holders of at least a majority in
aggregate principal amount of such series of Debt Securities at the time
outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect any obligation not so waived or impair any right consequent
thereon.
-32-
ARTICLE SEVEN
REMEDIES OF TRUSTEE AND DEBT SECURITYHOLDERS
Section 7.01. Except where otherwise indicated by the context or where the
term is otherwise defined for a specific purpose, the term "event of default"
wherever used in this Indenture shall mean, with respect to a particular series
of Debt Securities, one of the following described events:
(a) the failure of the Corporation to pay any installment of
interest on any Debt Security of such series, when and as the same shall become
due and payable, which failure shall have continued unremedied for a period of
30 days;
(b) the failure of the Corporation to pay the principal of (or
premium, if any, on) any Debt Security of such series, when and as the same
shall become payable, whether at maturity as therein expressed, by call for
redemption, by declaration of acceleration of maturity thereof as authorized by
this Indenture or otherwise;
(c) the failure of the Corporation to make or satisfy any sinking
fund payment or analogous obligation for such series, when and as the same shall
become due and payable;
(d) the failure of the Corporation, subject to the provisions of
Section 6.06, to observe and perform any other of the covenants or agreements on
the part of the Corporation with respect to such series contained in this
Indenture (including any indenture supplemental hereto or any Board Resolution
establishing the terms and provisions of such series), which failure shall have
continued unremedied to the satisfaction of the Trustee, or without provision
deemed by the Trustee to be adequate for the remedying thereof having been made,
for a period of 30 days after written notice shall have been given to the
Corporation by the Trustee by registered or certified mail, or shall have been
given to the Corporation and the Trustee by the holders of 25% or more in
principal amount of the Debt Securities of such series then outstanding,
specifying such failure and requiring the Corporation to remedy the same;
(e) the entry by a court of competent jurisdiction of a decree or
order, unstayed on appeal or otherwise and in effect for 30 days, adjudicating
the Corporation bankrupt or insolvent;
(f) the entry by a court of competent jurisdiction of a decree or
order appointing a receiver or liquidator or trustee of the Corporation or of
substantially all the property of the Corporation, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or composition
of or in respect of the Corporation under Title 11 of the United States Code, as
now constituted or as hereafter in effect, or any other Federal or state
bankruptcy or other similar statute applicable to the Corporation; but only if
and when such decree or order shall have continued unstayed on appeal or
otherwise and in effect for 60 days;
(g) the filing by the Corporation of a petition in voluntary
bankruptcy under any of the provisions of any bankruptcy law; or the consenting
by the Corporation to the filing of any bankruptcy or reorganization petition
against it under any such law; or (without
-33-
limitation of the generality of the foregoing) the filing by the Corporation of
a petition seeking relief under Title 11 of the United States Code, as now
constituted or as hereafter in effect, or any other Federal or state bankruptcy
or other similar statute applicable to the Corporation, as now or hereafter in
effect; or the making by the Corporation of an assignment for the benefit of
creditors; or the admitting in writing by the Corporation of its inability to
pay its debts generally as they become due; or the consenting by the Corporation
to the appointment of a receiver or liquidator or custodian or trustee of it or
of substantially all its property; or
(h) any event of default, as defined in any mortgage, indenture
(including this Indenture), trust agreement or other instrument securing,
evidencing or providing for any evidence of indebtedness of, or assumed or
guaranteed by, the Corporation (other than indebtedness which is subordinated to
the Debt Securities), as a result of which such indebtedness in excess of
$25,000,000 in aggregate principal amount or such other amount set forth in any
indenture supplemental hereto or any Board Resolution establishing the terms and
provisions of any series of Debt Securities shall be or become due and payable
prior to the date on which the same would otherwise become due and payable and
such acceleration shall not have been annulled or rescinded within 30 days of
notice of such acceleration given to the Corporation by the Trustee, or to the
Corporation and the Trustee by the holders of 25% or more in principal amount of
the outstanding Debt Securities of such series; provided, however, that, if such
event of default with respect to such other series of Debt Securities or under
such indenture or instrument (as the case may be) shall be remedied or cured by
the Corporation or waived by the holders of such other series of Debt Securities
or the holders of such indebtedness, as the case may be, pursuant to this
Indenture or such indenture or instrument, as the case may be, then unless the
maturity of the Debt Securities of such series shall have been accelerated as
provided herein, the event of default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without further
action upon the part of either the Trustee or the holders of such series;
provided, further, that, subject to the provisions of Sections 11.02 and 11.03,
the Trustee shall not be charged with knowledge of any such default unless
written notice thereof shall have been given to the Trustee by the Corporation,
by the holder or an agent of the holder of any such indebtedness, by the trustee
then acting under any indenture or other instrument under which such default
shall have occurred, or by the holders of not less than 10% in aggregate
principal amount of the outstanding Debt Securities of such series.
(i) Any other event of default with respect to any series of Debt
Securities designated in an indenture supplemental hereto or any Board
Resolution establishing the terms and provisions of any series of Debt
Securities.
Upon receipt by a Responsible Officer of the Trustee of any notice of
default pursuant to Section 7.01(d) with respect to Debt Securities of a series
all or part of which is represented by a Global Security, the Trustee may
establish a record date in accordance with Section 8.04 of this Indenture for
determining holders of Outstanding Debt Securities of such series entitled to
join in such notice of default, or, if not established by the Trustee, the
record date shall be established in accordance with the second sentence of
Section 8.04 of this Indenture. If a record date is so established, the holders
of Debt Securities of such series on such record date, or their duly designated
proxies, and only such persons, shall be entitled to join in such notice of
default, whether or not such holders remain holders after such record date;
provided, that unless holders of at least 10% in principal amount of the
Outstanding Debt
-34-
Securities of such series, or their proxies, shall have joined in such notice of
default prior to the day which is 60 days after such record date, such notice of
default shall automatically and without further action by any holder be
cancelled and of no further effect.
Section 7.02. If any one or more of the above-described events of default
shall happen with respect to Debt Securities of any series, then, and in each
and every such case, during the continuance of any such event of default, the
Trustee or the holders of 25% or more in principal amount of the Debt Securities
of such series then outstanding may, and upon the written request of the holders
of a majority in principal amount of the Debt Securities of such series then
outstanding the Trustee shall, declare the principal of all the Debt Securities
of such series (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such Debt Securities) then
outstanding (if not then due and payable) to be due and payable, and upon any
such declaration of acceleration of the maturity thereof the same shall become
and be immediately due and payable, anything in this Indenture or in the Debt
Securities of such series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that, if at any time after the
principal of the Debt Securities of a series (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Debt Securities) shall have been so declared to be due and payable, all arrears
of interest, if any, upon all the Debt Securities of such series (with interest,
to the extent that interest thereon shall, in the opinion of counsel
satisfactory to the Trustee, be legally enforceable, on any overdue installments
of interest at the rate borne by the Debt Securities of such series) and the
reasonable charges, fees and expenses of the Trustee, its agents and attorneys,
and all other sums payable under this Indenture with respect to such series
(except the principal of the Debt Securities of such series which would not be
due and payable were it not for such declaration), shall be paid by the
Corporation, and every other default and event of default under this Indenture
with respect to the Debt Securities of such series shall have been made good to
the reasonable satisfaction of the Trustee or of the holders of a majority in
principal amount of the Debt Securities of such series then outstanding, or
provision deemed by the Trustee or by such holders to be adequate therefor shall
have been made, then and in every such case the holders of a majority in
principal amount of the Debt Securities of such series then outstanding may, on
behalf of the holders of all the Debt Securities of such series, waive the event
of default by reason of which the principal of the Debt Securities of such
series shall have been so declared to be due and payable and may rescind and
annul such declaration and its consequences; but no such waiver, rescission, or
annulment shall extend to or affect any subsequent default or event of default
or impair any right consequent thereon. Any declaration by the Trustee pursuant
to this Section 7.02 shall be by written notice to the Corporation, and any
declaration or waiver by the holders of Debt Securities of a series pursuant to
this Section 7.02 shall be by written notice to the Corporation and the Trustee.
Upon receipt by the Trustee of any written declaration of acceleration, or
waiver, rescission, and annulment thereof, with respect to Debt Securities of a
series all or part of which is represented by a Global Security, the Trustee may
establish a record date for determining holders of Outstanding Debt Securities
of such series entitled to join in such declaration of acceleration, or waiver,
rescission, and annulment, as the case may be, in accordance with Section 8.04
of this Indenture, or, if not established by the Trustee, the record date shall
be established in accordance with the second sentence of Section 8.04 of this
Indenture. If a record date is so established, the holders on such record date,
or their duly designated proxies, and only
-35-
such persons, shall be entitled to join in such declaration of acceleration, or
waiver, rescission, and annulment, as the case may be, whether or not such
holders remain holders after such record date; provided, that unless such
declaration of acceleration, or waiver, rescission, and annulment, as the case
may be, shall have become effective by virtue of the requisite percentage having
been obtained prior to the day which is 60 days after such record date, such
declaration of acceleration, or waiver, rescission, and annulment, as the case
may be, shall automatically and without further action by any holder be
cancelled and of no further effect.
Section 7.03. If the Corporation shall fail for a period of 30 days to pay
any installment of interest on any Debt Security of any series or shall fail to
pay the principal of (or premium, if any, on) any of the Debt Securities of any
series when and as the same shall become due and payable, whether at maturity,
by call for redemption, pursuant to any sinking fund or analogous obligation, by
declaration of acceleration of the maturity thereof as authorized by this
Indenture, or otherwise, then, upon demand of the Trustee, the Corporation will
pay to the Trustee for the benefit of the holders of the Debt Securities of such
series then outstanding the whole amount which then shall have become due and
payable on all Debt Securities of such series, with interest on the overdue
principal (and premium, if any) and (so far as the same may be legally
enforceable) on the overdue installments of interest at the rate borne by the
Debt Securities of such series (or, with respect to Original Issue Discount
Securities, at the rate specified in the terms of such Debt Securities for
interest on overdue principal thereof upon maturity, redemption, or
acceleration) and reasonable compensation to the Trustee, its agents and
attorneys, and any other reasonable expenses and liabilities incurred by the
Trustee under this Indenture without negligence or bad faith.
In case the Corporation shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust or
otherwise as it shall deem advisable, shall be entitled and empowered to
institute any action or proceeding at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Corporation or any other obligor upon such Debt Securities, and
collect the moneys adjudged or decreed to be payable out of the property of the
Corporation or any other obligor upon such Debt Securities, wherever situated,
in the manner provided by law. Every recovery of judgment in any such action or
other proceeding, subject to the payment of the expenses, disbursements, and
compensation of the Trustee, its agents and attorneys, shall be for the ratable
benefit of the holders of such Debt Securities which shall be the subject of
such action or proceeding. All rights of action upon or under any of the Debt
Securities or this Indenture may be enforced by the Trustee without the
possession of any of the Debt Securities and without the production of any
thereof at any trial or any proceeding relative thereto.
Section 7.04. The Trustee for each series of Debt Securities is hereby
appointed, and each and every holder of Debt Securities of such series, by
receiving and holding the same, shall be conclusively deemed to have appointed
such Trustee, the true and lawful attorney-in-fact of such holder, with
authority to make or file (whether or not the Corporation shall be in default in
respect of the payment of the principal of (or premium, if any) or interest, if
any, on any of the Debt Securities of such series), in its own name as trustee
of an express trust or otherwise as it shall deem advisable, in any
receivership, insolvency, liquidation, bankruptcy, reorganization, or other
judicial proceedings relative to the Corporation or any other obligor upon such
Debt
-36-
Securities or to their respective creditors or property, any and all claims,
proofs of claim, proofs of debt, petitions, consents, other papers and
documents, and amendments of any thereof, as may be necessary or advisable in
order to have the claims of the Trustee and of the holders of such Debt
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all
other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceedings any of the claims of such Trustee and of any of such
holders in respect of any of the Debt Securities of such series; and any
receiver, assignee, custodian, trustee, or debtor in any such proceedings is
hereby authorized, and each and every holder of the Debt Securities of such
series, by receiving and holding the same, shall be conclusively deemed to have
authorized any such receiver, assignee, custodian, trustee, or debtor, to make
any such payment or delivery to or on the order of such Trustee, and, in the
event that such Trustee shall consent to the making of such payments or
deliveries directly to the holders of the Debt Securities of such series, to pay
to such Trustee any amount due it for compensation and expenses, including
counsel fees and expenses, incurred by it down to the date of such payment or
delivery; provided, however, that nothing herein contained shall be deemed to
authorize or empower such Trustee to consent to or accept or adopt, on behalf of
any holder of Debt Securities of such series, any plan of reorganization or
readjustment of the Corporation affecting the Debt Securities of such series or
the rights of any holder thereof, or to authorize or empower such Trustee to
vote in respect of the claim of any holder of any Debt Securities of such series
in any such proceedings.
Section 7.05. Any moneys collected by the Trustee under this Article Seven
shall be applied by the Trustee as follows:
First: To the payment of all amounts due the Trustee under this Indenture
and, in particular, Section 11.01 (a) hereof.
Second: To the payment of the amounts then due and unpaid upon the Debt
Securities in respect of which such moneys shall have been collected, ratably
and without preference or priority of any kind, according to the amounts due and
payable on such Debt Securities at the date fixed by the Trustee for the
distribution of such moneys, upon presentation of such Debt Securities and
notation thereon of the payment, if only partially paid, and upon the surrender
and cancellation thereof, if fully paid.
Any surplus then remaining shall be paid to the Corporation or to such
other persons as shall be entitled to receive it.
Section 7.06. Upon any sale made under any writ of execution issued on any
judgment for the recovery of the indebtedness evidenced by the Debt Securities
of any series or recovered under this Indenture, any purchaser shall be
entitled, if and to the extent permitted by law, in making settlement or payment
of the purchase price of the property purchased, to present and to turn in and
use any of the Debt Securities of such series then matured and unpaid, such Debt
Securities being computed for that purpose at a sum equal to that which shall be
payable out of the net proceeds of such sale to such purchaser as the holder
thereof for his share of such net proceeds; and, if the amounts so payable in
respect of such Debt Securities shall be less than the amount for which the
Corporation may be liable thereon, then the receipt endorsed thereon
-37-
under the direction of any person authorized to receive payment of the purchase
price for the amount to be so allowed or credited thereon shall constitute
partial payment and settlement and shall be conclusive proof of the amount
thereof. At any such sale, any holder or holders of the Debt Securities of such
series may directly, or through one or more agents, bid for and purchase the
property sold for his or their own account and make payment therefor as
aforesaid or otherwise and may hold, retain, and dispose of such property
without further accountability.
Section 7.07. If any one or more of the events of default described in
Section 7.01 shall occur and be continuing with respect to any series of Debt
Securities, the Trustee shall be entitled, if it shall so elect, as a matter of
right, whether or not the principal of (or premium, if any, on) the Debt
Securities of such series or any thereof shall have been declared or shall have
become due and payable, to the appointment of a receiver of any of or all the
property, interests, rights, and business of the Corporation and of the
earnings, rents, issues, and profits thereof, with such powers as the court
making such appointment shall confer; provided, however, that nothing in this
Section 7.07 contained shall entitle the Trustee to the appointment of a
receiver of any property which shall at the time be subject to the lien of any
mortgage if, pursuant to the provisions of such mortgage, such property shall
then be in the possession of the trustee under such mortgage or a receiver of
such property shall have been appointed by a court of competent jurisdiction and
the appointment of such receiver shall then be in effect.
Section 7.08. The holders of a majority in principal amount of the
outstanding Debt Securities of any series affected thereby (each series voting
as one class) at the time outstanding may direct the time, method, and place of
conducting any proceeding for any remedy available with respect to such series
to the Trustee hereunder, or of exercising any trust or power hereby conferred
upon the Trustee; but, subject to the provisions of Section 11.02, the Trustee
shall have the right to decline to follow any such direction if a responsible
officer or officers of the Trustee shall determine that the action so directed
would be unjustly prejudicial to the holders of Debt Securities of such series
not joining therein, may not be lawfully taken or would involve the Trustee in
personal liability.
Upon receipt by the Trustee of any such direction with respect to Debt
Securities of a series all or part of which is represented by a Global Security,
the Trustee may establish a record date in accordance with Section 8.04 of this
Indenture for determining holders of Outstanding Debt Securities of such series
entitled to join in such direction, or, if not established by the Trustee, the
record date shall be established in accordance with the second sentence of
Section 8.04 of this Indenture. If a record date is so established, the holders
on such record date, or their duly designated proxies, and only such persons,
shall be entitled to join in such direction, whether or not such holders remain
holders after such record date; provided, that unless such majority in principal
amount shall have been obtained prior to the day which is 60 days after such
record date, such direction shall automatically and without further action by
any holder be cancelled and of no further effect.
Section 7.09. No holder of any Debt Security of any series shall have any
right to institute any action, suit, or proceeding at law or in equity for the
execution of any trust hereunder or for the appointment of a receiver or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee for such series written notice of the happening of one or more of the
events of default herein specified, and unless also the holders of a majority
-38-
in principal amount of the Debt Securities of such series then outstanding shall
have requested the Trustee in writing to take action in respect of the matter
complained of, and unless also there shall have been offered to the Trustee
security and indemnity satisfactory to it against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after receipt of such notification, request, and offer of security and
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding; and such notification, request, and offer of security and
indemnity are hereby declared in every such case to be conditions precedent to
any such action, suit, or proceeding by any holder of any Debt Securities of any
series; it being understood and intended that no one or more of the holders of
Debt Securities of any series shall have any right in any manner whatsoever by
his or their action to enforce any right hereunder, except in the manner herein
provided, and that every action, suit, or proceeding at law or in equity shall
be instituted, had, and maintained in the manner herein provided and for the
equal benefit of all holders of the outstanding Debt Securities of such series;
provided, however, that nothing in this Indenture or in the Debt Securities
contained shall affect or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on the Debt Securities to the respective holders of the Debt
Securities at the respective due dates in such Debt Securities stated, or shall
affect or impair the right, which is also absolute and unconditional, of such
holders (without their consent) to institute suit to enforce the payment
thereof.
Section 7.10. All parties to this Indenture and the holders of the Debt
Securities agree that the court may in its discretion require, in any action,
suit, or proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit, or proceeding against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such action, suit, or proceeding of an undertaking to pay the costs of such
action, suit, or proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such action, suit, or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 7.10 shall not apply to any action,
suit, or proceeding instituted by the Trustee, to any action, suit, or
proceeding instituted by any one or more holders of Debt Securities of a series
holding in the aggregate more than 10% in principal amount of the Debt
Securities of such series then outstanding, or to any action, suit, or
proceeding instituted by any holder of Debt Securities for the enforcement of
the payment of the principal of (or premium, if any) or interest, if any, on any
of the Debt Securities of such series, on or after the respective due dates
expressed in such Debt Securities.
Section 7.11. No remedy herein conferred upon or reserved to the Trustee
or to the holders of Debt Securities of any series is intended to be exclusive
of any other remedy or remedies, and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. No delay or omission of
the Trustee or of any holder of the Debt Securities to exercise any right or
power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver of any such default or an acquiescence therein; and
every power and remedy given by this Article Seven to the Trustee and to the
holders of Debt Securities of any series, respectively, may be exercised from
time to time and as often as may be deemed expedient by the Trustee or by the
holders of Debt Securities of such series, as the case may be. In case the
Trustee or any holder of Debt Securities of such series shall have proceeded to
enforce any right under this Indenture and
-39-
the proceedings for the enforcement thereof shall have been discontinued or
abandoned because of waiver or for any other reason or shall have been
adjudicated adversely to the Trustee or to such holder of Debt Securities, then
and in every such case the Corporation, the Trustee and the holders of the Debt
Securities of such series shall severally and respectively be restored to their
former positions and rights hereunder and thereafter all rights, remedies, and
powers of the Trustee shall continue as though no such proceedings had been
taken, except as to any matters so waived or adjudicated. The provisions of this
Section 7.11 are subject to the provisions of Section 7.09.
Section 7.12. The holders of not less than a majority in principal amount
of the outstanding Debt Securities of any series may on behalf of the holders of
all the outstanding Debt Securities of such series waive any past default
hereunder with respect to the Debt Securities of such series and its
consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
interest on any Debt Securities of such series, or
(b) in respect of a covenant or provision of this Indenture which
under Article Fourteen cannot be modified or amended without the consent of the
holder of each outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any event of
default described in Section 7.01 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 7.13. If, for the purpose of obtaining a judgment in any court
with respect to any obligation of the Corporation hereunder or under any Debt
Security or any related coupon, it shall become necessary to convert into any
other currency or currency unit any amount in the currency or currency unit due
hereunder or under such Debt Security or coupon, then such conversion shall be
made by the Currency Determination Agent at the Market Exchange Rate as in
effect on the date of entry of the judgment (the "Judgment Date"). If pursuant
to any such judgment, conversion shall be made on a date (the "Substitute Date")
other than the Judgment Date and there shall occur a change between the Market
Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as
in effect on the Substitute Date, the Corporation agrees to pay such additional
amounts, if any, as may be necessary to ensure that the amount paid is equal to
the amount in such other currency or currency unit which, when converted at the
Market Exchange Rate as in effect on the Judgment Date, is the amount due
hereunder or under such Debt Security or coupon. Any amount due from the
Corporation under this Section 7.13 shall be due as a separate debt and is not
to be affected by or merged into any judgment being obtained for any other sums
due hereunder or in respect of any Debt Security or coupon. In no event,
however, shall the Corporation be required to pay more in the currency or
currency unit due hereunder or under such Debt Security or coupon at the Market
Exchange Rate as in effect on the Judgment Date than the amount of currency or
currency unit stated to be due hereunder or under such Debt Security or coupon
so that in any event the Corporation's obligations hereunder or under such Debt
Security or coupon will be effectively maintained as obligations in such
currency or currency unit, and the Corporation shall be entitled to withhold
-40-
(or be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion on the Substitute Date over the amount due and
payable on the Judgment Date.
ARTICLE EIGHT
CONCERNING THE DEBT SECURITYHOLDERS
Section 8.01. Whenever in this Indenture it is provided that the holders
of a specified percentage or a majority in aggregate principal amount of Debt
Securities of any or all series may take any action (including the making of any
demand or request, the giving of any notice, consent, or waiver, or the taking
of any other action), the fact that at the time of taking any such action the
holders of such specified percentage or majority have joined therein may be
evidenced (1) by any instrument or any number of instruments of similar tenor
executed by Debt Securityholders in person or by an agent or proxy appointed in
writing, or (2) by the record of the holders of Debt Securities voting in favor
thereof at any meeting of Debt Securityholders duly called and held in
accordance with the provisions of Article Nine, or (3) by a combination of such
instrument or instruments and any such record of such a meeting of Debt
Securityholders.
Section 8.02. Subject to the provisions of Section 11.02, proof of the
execution of any instrument by a Debt Securityholder or his agent or proxy and
proof of the holding by any person of any of the Debt Securities shall be
sufficient if made in the following manner:
The fact and date of the execution by any person of any such instrument
may be proved in any reasonable manner acceptable to the Trustee.
The ownership of Debt Securities may be proved by the register of such
Debt Securities or by a certificate of the registrar thereof.
The record of any Debt Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
Section 8.03. In determining whether the holders of the requisite
principal amount of the Debt Securities of any or all series have given any
direction, request, waiver, or consent under this Indenture, Debt Securities
which are owned by the Corporation or by any other obligor on the Debt
Securities or by any person directly or indirectly controlling, or controlled
by, or under direct or indirect common control with, the Corporation or any such
other obligor shall be disregarded, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction,
request, or consent, only Debt Securities which the Trustee knows are so owned
shall be disregarded. Debt Securities so owned which have been pledged in good
faith may be regarded as outstanding for purposes of this Section 8.03, if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
to vote such Debt Securities and that the pledgee is not a person directly or
indirectly controlling, or controlled by, or under direct or indirect common
control with, the Corporation or any such other obligor. In case of a dispute as
to such right, any decision by the Trustee taken upon and in accordance with the
advice of counsel shall be full protection to the Trustee.
-41-
Section 8.04. The Corporation may set a record date in the circumstances
permitted by the Trust Indenture Act for the purpose of determining the holders
of Debt Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver, or other action, or to vote
on any action authorized or permitted to be given or taken by holders of Debt
Securities of such series. If not set by the Corporation prior to the first
solicitation of a holder of Debt Securities of such series in respect of any
such action, or, in the case of any such vote, prior to such vote, or if not set
by the Trustee in accordance with (1) Section 7.01, upon receipt by the Trustee
of any notice of default pursuant to Section 7.01(d), (2) Section 7.02, upon
receipt by the Trustee of any written declaration of acceleration of maturity,
or waiver, rescission, and annulment thereof, or (3) Section 7.08, upon receipt
by the Trustee of any direction of the time, method and place for conducting any
proceeding for any remedy available, each such notice, declaration, or direction
given with respect to Debt Securities of a series all or part of which is
represented by a Global Security, the record date for any such action, vote,
notice, declaration, or direction shall be the 30th day (or, if later, the date
of the most recent list of holders required to be provided pursuant to Section
10.03) prior to such first solicitation, vote, notice, declaration, or
direction, as the case may be. With regard to any record date for action to be
taken by the holders of one or more series of Debt Securities, only the holders
of Debt Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
ARTICLE NINE
DEBT SECURITYHOLDERS' MEETINGS
Section 9.01. A meeting of Debt Securityholders of any or all series may
be called at any time and from time to time pursuant to the provisions of this
Article Nine for any of the following purposes:
(1) to give any notice to the Corporation or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Debt Securityholders pursuant to any of the
provisions of Article Seven;
(2) to remove the Trustee for any series and appoint a successor
Trustee for such series pursuant to the provisions of Article Eleven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 14.02; or
(4) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the Debt
Securities of any or all series under any other provision of this
Indenture or under applicable law.
Section 9.02. The Trustee may at any time call a meeting of Debt
Securityholders of any or all series to take any action specified in Section
9.01, to be held at such time and at such place as the Trustee shall determine.
Notice of every meeting of the Debt Securityholders of any or all 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 mailed by the Corporation, first
class
-42-
postage prepaid, not later than the twentieth day prior to the date fixed for
such meeting, to all Debt Securityholders of the applicable series at their
addresses as the same shall then appear in the register of the Corporation.
Section 9.03. In case at any time the Corporation, pursuant to a Board
Resolution, or the holders of at least 10% in aggregate principal amount of the
Debt Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Debt Securityholders of
any or all series, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Corporation or the holders of such Debt Securities in the amount above
specified may determine the time and place for such meeting and may call such
meeting to take any action authorized in Section 9.01, by mailing notice thereof
as provided in Section 9.02.
Section 9.04. To be entitled to vote at any meeting of Debt
Securityholders a person shall be (a) a holder of one or more Debt Securities of
a series with respect to which a meeting is being held, or (b) a person
appointed as a proxy by an instrument executed by such holder. The only persons
who shall be entitled to be present or to speak at any meeting of Debt
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Corporation and its counsel.
Section 9.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Debt Securityholders, in regard to proof of the holding of Debt
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates, and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit. Except as otherwise
permitted or required by any such regulations, the holding of Debt Securities
shall be proved in the manner specified in Section 8.02 and the appointment of
any proxy shall be proved in the manner specified in Section 8.02 or by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank, banker, or stock exchange member firm satisfactory to the
Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Debt Securityholders as provided in Section 9.03, in which
case the Corporation or the Debt Securityholders 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 holders of a majority in principal amount of the Debt Securities represented
at the meeting and entitled to vote.
Subject to the provisions of Section 8.03, at any meeting each Debt
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount or such other amount established pursuant to Section 2.01 (in the case of
Original Issue Discount Securities or Debt Securities denominated in a foreign
currency or currencies, such principal amount to be determined as provided in
the definition of "Outstanding" in Section 1.02) of Debt
-43-
Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any such Debt 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 other than
as stated in Section 9.04. Any meeting of Debt Securityholders duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time, and the meeting may be held as so adjourned without further notice.
At any meeting of Debt Securityholders, the presence of persons holding or
representing Debt Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Debt Securities
properly represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present.
Section 9.06. The vote upon any resolution submitted to any meeting of
Debt Securityholders shall be by written ballots on which shall be subscribed
the signatures of the holders of Debt Securities or of their representatives by
proxy and the principal amount (in the case of Original Issue Discount
Securities or Debt Securities denominated in a foreign currency or currencies,
such principal amount to be determined as provided in the definition of
"Outstanding" in Section 1.02) of the Debt Securities of the appropriate series
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Debt
Securityholders 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 mailed as provided in Section 9.02. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Trustee to be preserved by the Trustee. With
the latter there shall also be delivered to the Trustee the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Debt
Securityholders of any or all series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Debt
Securityholders of any or all series under any of the provisions of this
Indenture or of such series of Debt Securities.
-44-
ARTICLE TEN
REPORTS BY THE CORPORATION AND THE TRUSTEE AND DEBT SECURITYHOLDERS' LISTS
Section 10.01. The Trustee shall transmit to the holders of Debt
Securities for which it serves as Trustee within 60 days after April 15 of each
year commencing with the year in which Debt Securities of any series are issued
under this Indenture, a brief report dated as of such April 15 that complies
with Section 313(a) of the Trust Indenture Act of 1939 if required by such
Section 313(a). The Trustee also shall comply with Sections 313(b)(2), 313(c)
and 313(d) of the Trust Indenture Act of 1939.
The Corporation will reimburse the Trustee for all expenses incurred in
the preparation and transmission of any report pursuant to the provisions of
this Section 10.01 and of Section 10.02.
Section 10.02. (a) The Corporation will file with the Trustee, within 15
days after the Corporation shall be required so to file the same with the
Securities and Exchange Commission, copies of the annual reports and of the
information, documents, and other reports which the Corporation may be required
to file with the Securities and Exchange Commission pursuant to the provisions
of Section 13 or Section 15 (d) of the Securities Exchange Act of 1934 (or
copies of such portions of any of the foregoing as the Securities and Exchange
Commission may by rules and regulations prescribe); or, if the Corporation is
not required to file information, documents, or reports pursuant to the
provisions of either of such Sections, then the Corporation will file with the
Trustee and the Securities and Exchange Commission, in accordance with rules and
regulations prescribed by the Securities and Exchange Commission, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to the provisions of 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 in such rules and regulations.
(b) The Corporation will file with the Trustee and the Securities and
Exchange Commission, in accordance with rules and regulations prescribed by the
Securities and Exchange Commission, such additional information, documents, and
reports with respect to compliance by the Corporation with the conditions and
covenants provided for in this Indenture as may be required by such rules and
regulations.
(c) The Corporation will transmit to the holders of Debt Securities,
within 30 days after the filing thereof with the Trustee (unless some other time
shall be fixed by the Securities and Exchange Commission) and in the manner and
to the extent provided in subdivision (c) of Section 10.01, such summaries of
any information, documents, and reports required to be filed by the Corporation
pursuant to the provisions of subdivisions (a) and (b) of this Section 10.02 as
may be required by rules and regulations prescribed by the Securities and
Exchange Commission.
Section 10.03. (a) The Corporation will furnish or cause to be furnished
to the Trustee semiannually, not more than 15 days after each Record Date for a
series of Debt
-45-
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of the Debt Securities of such series as of
such Record Date, and at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Corporation 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, but so long as the Trustee is the Debt Security
registrar, no such lists shall be required to be furnished.
(b) The Trustee will preserve, in as current form as is reasonably
practicable, all information as to the names and addresses of holders of Debt
Securities so furnished to it or received by it in the capacity of paying agent
or Debt Security registrar, if acting as such. The Trustee may (1) destroy any
information furnished to it as provided in subdivision (a) of this Section 10.03
upon receipt of new similar information so furnished to it; and (2) destroy any
information received by it as paying agent or Debt Security registrar in
connection with an interest payment, upon receipt of new similar information but
not until 45 days after a subsequent interest payment shall have been made.
(c) Within five business days after receipt by the Trustee of a
written application by any three or more holders of Debt Securities of any
series stating that such holders (hereinafter in this subdivision (c) called
such applicants) desire to communicate with other holders of Debt Securities of
such series with respect to their rights under this Indenture or under the
series of Debt Securities, and accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, and by reasonable
proof that each such applicant has owned a Debt Security of such series for a
period of at least six months preceding the date of such application, the
Trustee will, at its election, either:
(1) afford to such applicants access to all information furnished
to, or received by, and preserved by, the Trustee pursuant to the
provisions of this Section 10.03; or
(2) inform such applicants as to the approximate number of holders
of Debt Securities of such series according to the most recent information
so furnished to, or received by, and preserved by, the Trustee, and as to
the approximate cost of mailing to such holders of Debt Securities the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to all holders of Debt Securities of the series whose names and addresses
are contained in the information so furnished to, or received by, and preserved
by, the Trustee copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of such mailing, unless, within five
business days after such tender, the Trustee shall mail to such applicants, and
file with the Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the holders
of the Debt Securities of such series or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Securities and Exchange Commission, after opportunity for a hearing upon the
-46-
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of the objections specified in the written statement so
filed, or if, after the entry of an order sustaining one or more of such
objections, the Securities and Exchange Commission shall find, after notice and
opportunity for hearing, that all objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such holders of Debt Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
Each and every holder of the Debt Securities, by receiving and holding the
same, agrees with the Corporation, any agent and the Trustee that neither the
Corporation, any agent nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
holders of Debt Securities in accordance with the provisions of this subdivision
(c), 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 this subdivision (c).
ARTICLE ELEVEN
CONCERNING THE TRUSTEE
Section 11.01. The Trustee accepts the trusts created by this Indenture
upon the terms and conditions hereof, including the following, to all of which
the parties hereto and the holders from time to time of Debt Securities of each
series, by receiving and holding the same, agree:
(a) The Trustee shall be entitled to reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and such compensation, as well as the reasonable compensation of its
counsel, and all other reasonable expenses incurred by the Trustee hereunder,
the Corporation agrees to pay promptly on demand from time to time as such
services shall be rendered and as such expenses shall be incurred. In default of
such payment by the Corporation, the Trustee shall have a lien therefor on any
moneys held by the Trustee hereunder prior to any rights therein of the holders
of the Debt Securities of any series for which it serves as Trustee. The
Corporation also agrees to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, or expense incurred without negligence or bad
faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust or the performance of its duties
hereunder, as well as the costs and expenses of defending against any claim of
liability in the premises.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any duty hereunder either directly or by its agents and 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.
(c) The Trustee shall not be responsible in any manner whatsoever
for the correctness of the recitals herein or in the Debt Securities (except its
certificate of
-47-
authentication thereon, if such shall have been executed by the Trustee), all of
which are made by the Corporation solely; and the Trustee shall not be
responsible or accountable in any manner whatsoever for or with respect to the
validity or execution or sufficiency of this Indenture or of the Debt Securities
(except its certificate of authentication thereon, if such shall have been
executed by the Trustee), and the Trustee makes no representation with respect
thereto. The Trustee shall not be accountable for the use or application by the
Corporation of any series of Debt Securities, or the proceeds of any series of
Debt Securities authenticated and delivered by the Trustee in conformity with
the provisions of this Indenture.
(d) The Trustee may consult with counsel, and, to the extent
permitted by Section 11.02, the opinion or written advice of such counsel shall
be full and complete authorization and protection in respect of any action taken
or suffered or omitted to be taken by the Trustee hereunder in good faith and in
accordance with the opinion or advice of such counsel.
(e) The Trustee, to the extent permitted by Section 11.02, may rely
upon the certificate of the Secretary or one of the Assistant Secretaries of the
Corporation as to the adoption of any Board Resolution.
(f) The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities and may otherwise deal with the
Corporation with the same rights it would have had if it were not Trustee
hereunder.
(g) Any action taken by the Trustee pursuant to any provision hereof
at the request or with the consent of any person who at the time is the holder
of a Debt Security of any series shall be conclusive and binding in respect of
such Debt Security upon all future holders thereof or of any Debt Security or
Debt Securities which may be issued for or in lieu thereof in whole or in part,
whether or not such Debt Security shall have noted thereon the fact that such
request or consent had been made or given.
(h) Subject to the provisions of Section 11.02, the Trustee may rely
and shall be protected in acting upon any resolution, certificate, statement,
instrument, notice, opinion, order, request, direction, Debt Security, or other
paper or document believed by it to be genuine and to have been signed or
presented to it by the proper party or parties.
(i) Subject to the provisions of Section 11.02, the Trustee shall
not be under any obligation to exercise any of the rights or powers vested in it
by this Indenture at the request, order, or direction of any of the holders of
any series of Debt Securities, pursuant to any provisions of this Indenture,
unless one or more of the holders of such Debt Securities shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses, and
liabilities which may be incurred by it therein or thereby.
Section 11.02. If some one or more of the events of default specified in
Section 7.01 shall have happened, then, during the continuance thereof, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and shall use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
-48-
None of the provisions of this Indenture shall be construed as relieving
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that, anything in this
Indenture contained to the contrary notwithstanding:
(1) unless and until an event of default specified in Section 7.01 shall
have happened which at the time is subsisting,
(a) the Trustee shall not be liable except for the performance of
such duties as are specifically set out in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee, whose duties and obligations shall be determined solely by the
express provisions of this Indenture, and
(b) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in the
absence of bad faith on the part of the Trustee, upon certificates and
opinions furnished to it and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which, by
the provisions of this Indenture, 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;
(2) the Trustee shall not be liable to any holder of Debt Securities or to
any other person for any error of judgment made in good faith by a responsible
officer or officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable to any holder of Debt Securities or to
any other person 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 Debt Securities of any series at the time outstanding
(determined in accordance with the provisions of Article Eight hereof), relating
to the time, method, and place of conducting any proceeding for any remedy
available to it or exercising any trust or power conferred upon it by this
Indenture; 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.
Section 11.03. The Trustee shall give to the holders of the Debt
Securities of each series for which it serves as Trustee, in the manner and to
the extent provided in subdivision (c) of Section 10.01, notice of each default
with respect to such series known to the Trustee within 90 days after the
occurrence thereof, unless such default shall have been cured before the giving
of such notice; but, unless such default be the failure to pay the principal of
(or premium, if any) or interest, if any, on any of the Debt Securities of such
series when and as the same shall become payable, the Trustee shall be protected
in withholding such notice, if and so long as the
-49-
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 the Debt
Securities of such series. The term "default", as used in this Section 11.03 and
in Section 11.06, shall mean the happening of any event defined in Section 7.01
as an "event of default", except that, for the purposes of this Section 11.03
and Section 11.06 only, there shall be eliminated from the definition of any
such event specified in paragraph (a), (c), (d), (e), or (g) of said Section
7.01 any reference to the continuance, the continuance in effect for any period
of days, or the giving of written notice of any failure on the part of the
Corporation or of any decree or order, referred to in such definition.
Section 11.04. The Trustee, or any successor to it hereafter appointed,
may at any time resign and be discharged of the trusts hereby created as to any
or all series of Debt Securities for which it serves as Trustee by giving to the
Corporation notice in writing and by mailing notice thereof to the holders of
the Debt Securities of such series at their addresses as the same shall then
appear in the register of the Corporation. Such resignation shall take effect
upon the appointment by the holders of the Debt Securities of such series or by
the Corporation as hereinafter provided of a successor Trustee eligible under
Section 11.05 and not disqualified under Section 11.06, and the acceptance of
such appointment by such successor Trustee. Any Trustee hereunder may be removed
with respect to any series at any time by the filing with such Trustee and the
delivery to the Corporation of an instrument in writing signed by the holders of
a majority in principal amount of the Debt Securities of such series then
outstanding, specifying such removal and the date when it shall become
effective.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due it hereunder.
Section 11.05. There shall at all times be a Trustee under this Indenture;
and such Trustee shall at all times be (i) a corporation organized and doing
business under the laws of the United States of America or any State thereof,
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal or State authority and which
has a combined capital and surplus of not less than $5,000,000, or (ii) a
corporation or other person organized and doing business under the laws of a
foreign government that the Securities and Exchange Commission shall have
permitted, pursuant to the Trust Indenture Act of 1939, to act as sole trustee
under an indenture qualified or to be qualified pursuant thereto and which has a
combined capital and surplus of not less than $5,000,000; provided that such
corporation or other person (A) is authorized under such laws to exercise
corporate trust powers and (B) is subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees. For the purposes of this Section 11.05, the
combined capital and surplus of any such Trustee shall be deemed to be the
combined capital and surplus as set forth in the most recent report of its
condition published by such Trustee, provided that such reports are published at
least annually, pursuant to law or to the requirements of a Federal, State or
foreign supervising or examining authority. Neither the Corporation nor any
person directly or indirectly controlling, controlled by, or under common
control with the Corporation shall serve as Trustee hereunder. If such Trustee
or any successor shall at any time cease to have the qualifications prescribed
in this Section 11.05, it shall promptly resign as Trustee hereunder.
-50-
Section 11.06. The Trustee shall comply with Section 310(b) of the Trust
Indenture Act of 1939.
Section 11.07. In case at any time the Trustee shall resign with respect
to one or more series of Debt Securities, or shall be removed (unless the
Trustee shall be removed with respect to one or more series of Debt Securities
as provided in subdivision (c) of Section 11.06, in which event the vacancy
shall be filled as provided in said subdivision), or shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or if a receiver of the
Trustee or of its property shall be appointed, or if 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, a successor Trustee may
be appointed by the holders of a majority in principal amount of the Debt
Securities of the applicable series then outstanding (each series voting as a
class) by an instrument or concurrent instruments in writing signed in duplicate
by such holders and filed, one original thereof with the Corporation and the
other with the successor Trustee; but, until a successor Trustee shall have been
so appointed by the holders of Debt Securities of the applicable series as
herein authorized, the Corporation by a Board Resolution (or, in case all or
substantially all the assets of the Corporation shall be in the possession of
one or more receivers lawfully appointed, or of trustees or custodians in
bankruptcy or reorganization proceedings (including a trustee or trustees or a
custodian or custodians appointed under the provisions of Title 11 of the United
States Code, as now constituted or as hereafter in effect), or of assignees for
the benefit of creditors, such receivers, trustees, custodians, or assignees, as
the case may be, by an instrument in writing), shall appoint a successor
Trustee. Subject to the provisions of Sections 11.05 and 11.06, upon the
appointment as aforesaid of a successor Trustee, the Trustee shall cease to be
Trustee as to the applicable series of Debt Securities hereunder. After any such
appointment other than by the holders of the applicable series of Debt
Securities, the person making such appointment shall forthwith cause notice
thereof to be mailed to the holders of the applicable series of Debt Securities
at their addresses as the same then appear in the register of the Corporation;
but any successor Trustee so appointed shall, immediately and without further
act, be superseded by a successor Trustee appointed by the holders of the
applicable series of Debt Securities in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Corporation, or by such receivers, trustees,
custodians, or assignees.
If any Trustee shall resign because of a conflict of interest as provided
in subdivision (a) of Section 11.06 and a successor Trustee shall not have been
appointed by the Corporation or by the holders of the applicable series of Debt
Securities or, if any successor Trustee so appointed shall not have accepted its
appointment within 30 days after such appointment shall have been made, the
resigning Trustee may apply to any court of competent jurisdiction for the
appointment of a successor Trustee. If in any other proper case a successor
Trustee shall not be appointed pursuant to the foregoing provisions of this
Section 11.07 within three months after such appointment might have been made
hereunder, the holder of any Debt Security of the applicable series or any
retiring Trustee may apply to any court of competent jurisdiction to appoint a
successor Trustee. Such court may thereupon, in any such case, after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
Any successor Trustee appointed hereunder shall execute, acknowledge, and
deliver to its predecessor Trustee and to the Corporation, and, if applicable,
to the receivers,
-51-
trustees, custodians, assignees, or court appointing it, as the case may be, an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee as to each applicable series of Debt
Securities shall become effective and such successor Trustee, without any
further act, deed, or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties, and obligations of such predecessor
Trustee with respect to such series with like effect as if originally named as
Trustee hereunder with respect to such series, and such predecessor Trustee,
upon payment of its charges and disbursements then unpaid, shall thereupon
become obligated to pay over, and such successor Trustee shall be entitled to
receive, all moneys on deposit with or held by such predecessor Trustee as
Trustee hereunder with respect to such series, subject, nevertheless, to the
lien provided for in Section 11.01. Nevertheless, on the written request of the
Corporation or of the successor Trustee or of the holders of at least 10% in
principal amount of the applicable series of Debt Securities then outstanding,
such predecessor Trustee, upon payment of its said charges and disbursements,
shall execute and deliver an instrument transferring to such successor Trustee
upon the trusts herein expressed all the rights, powers, and trusts of such
predecessor Trustee with respect to such series, and shall assign, transfer, and
deliver to the successor Trustee all moneys and properties held by such
predecessor Trustee with respect to such series; and, upon request of any such
successor Trustee, the Corporation shall make, execute, acknowledge, and deliver
any and all instruments in writing for more fully and effectually vesting in and
confirming to such successor Trustee all such authority, rights, powers, trusts,
immunities, duties, and obligations.
Section 11.08. Any corporation or other person into which the Trustee or
any successor to it in the trusts created by this Indenture shall be merged or
converted, or any corporation or other person with which it or any successor to
it shall be consolidated, or any corporation or other person resulting from any
merger, conversion, or consolidation to which the Trustee or any such successor
to it shall be a party, or any corporation or other person to which the Trustee
or any successor to it shall sell or otherwise transfer all or substantially all
of the corporate trust business of the Trustee, shall be the successor Trustee
under this Indenture without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided, however, that any such
corporation or other person shall be otherwise qualified and eligible under this
Article Eleven.
Section 11.09. The Trustee shall comply with Section 311(a) of the Trust
Indenture Act of 1939, excluding any creditor relationship listed in Section
311(b) thereof. The Trustee, upon its resignation or removal, shall be subject
to Section 311(a) of the Trust Indenture Act of 1939 as indicated therein.
Section 11.10. Except as otherwise provided in Section 11.02, and subject
to the provisions of Section 15.04 with respect to the certificates required
thereby, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action hereunder, such matters
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by a certificate with respect
thereto signed by the Chairman, Vice Chairman, President, or one of the Vice
Presidents and by the Treasurer or one of the Assistant Treasurers or by the
Secretary or one of the Assistant Secretaries of the Corporation and
-52-
delivered to the Trustee, and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered, or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 11.11. In the event that the Trustee is also acting as Paying
Agent, Authenticating Agent, Calculation Agent or Registrar hereunder, the
rights and protections afforded to the Trustee pursuant to this Article Eleven
shall also be afforded to such Paying Agent, Authenticating Agent, Calculation
Agent or Registrar.
ARTICLE TWELVE
DEFEASANCE
Section 12.01. If at any time (a) the Corporation shall have paid or
caused to be paid the principal of and interest on all the Debt Securities of
any series outstanding hereunder, as and when the same shall have become due and
payable, or (b) the Corporation shall have delivered to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated (other
than any Debt Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced as provided in Section 2.07 or paid),
and if, in any such case, the Corporation shall also pay or cause to be paid all
other sums payable hereunder by the Corporation with respect to Debt Securities
of such series, then this Indenture shall cease to be of further effect with
respect to Debt Securities of such series (except as to (i) rights of
registration of transfer and exchange, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Debt Securities, (iii) rights of
the Debt Securityholders to receive payments of principal thereof and interest
thereon from the trust fund established pursuant to Section 12.02, and remaining
rights of the Debt Securityholders to receive mandatory sinking fund payments,
if any, from the trust fund established pursuant to Section 12.02, (iv) the
rights, obligations and immunities of the Trustee hereunder, (v) the rights of
the Debt Securityholders of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, (vi)
all other obligations of the Corporation in Sections 2.04, 2.06, 2.07, 10.03,
11.01, 11.04, 11.07 and 12.06 and (vii) the Corporation's rights pursuant to
Sections 11.04, 11.07, 12.05 and 12.06), and the Trustee, on demand of the
Corporation accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Corporation, shall execute proper instruments
acknowledging such satisfaction and discharging of this Indenture with respect
to Debt Securities of such series. The Corporation agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred
and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the Debt
Securities of such series.
Section 12.02. For purposes of Section 12.01, the Corporation shall be
deemed to have paid the principal of and interest on Debt Securities of any
series outstanding hereunder as and when the same shall have become due and
payable, if the Company shall have irrevocably deposited or caused to be
deposited in trust with the Trustee funds in cash and/or Governmental
Obligations sufficient to provide for timely payment of principal of, premium,
if any, and interest on the Debt Securities of such series to the stated
maturity or redemption, as the case may be, the sufficiency of which shall be
verified in a written report of a nationally recognized, independent public
accounting firm acceptable to the Trustee; provided, however, that (i) in order
to have
-53-
money available on a payment date to pay principal or interest on the Debt
Securities of such series, the Governmental Obligations shall be payable as to
principal and interest on or before such payment date in such amounts as will
provide the necessary money; and (ii) the Corporation shall obtain an Opinion of
Counsel (which may be based on a ruling from, or published by, the Internal
Revenue Service) to the effect that holders of Debt Securities of that series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amounts and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred; and provided further, however, that notwithstanding the foregoing,
with respect to any series of Debt Securities which shall at the time be listed
for trading on The New York Stock Exchange, there shall be no deposit of funds
in cash and/or in Governmental Obligations with the Trustee to pay the principal
amount, the redemption price or any installment of interest in order to
discharge the Corporation's obligation in respect of any such payment if at such
time the rules of The New York Stock Exchange prohibit such deposit with the
Trustee. The Corporation shall provide the Trustee an Officers' Certificate
stating whether such series of Debt Securities is so listed at the time of such
defeasance.
Section 12.03. Debt Securities of a series shall be deemed to have been
paid in full as between the Corporation and the respective holders (and future
holders) of Debt Securities of such series upon the satisfaction and discharge
of the Indenture with respect to Debt Securities of such series pursuant to
Section 12.01, except that in the case of such satisfaction and discharge as a
result of compliance with Section 12.02, the Debt Securities of such series
shall be deemed to have been paid in full as between the Corporation and the
respective holders (and future holders) of Debt Securities of such series only
if (1) the deposit in trust with the Trustee by the Corporation of the funds in
cash and/or Governmental Obligations as provided in Section 12.02 is not
subsequently deemed a preference under the United States Bankruptcy Code as then
in effect, (2) such defeasance does not result in a default under this Indenture
and (3) the Corporation provides the Trustee an Officers' Certificate stating
that the Corporation has complied with all conditions precedent to such
defeasance.
Section 12.04. Subject to Section 12.06, all money or Governmental
Obligations deposited with the Trustee pursuant to Section 12.02 shall be held
in trust and applied by it to the payment, either directly or through the paying
agent (including the Corporation acting as its own paying agent), to the holders
of the particular Debt Securities of such series for the payment or redemption
of which such money or Governmental Obligations shall have been deposited with
the Trustee, of all sums due and to become due thereon for principal, premium,
if any, and interest. To facilitate the defeasance of Debt Securities of a
series, upon receipt of any funds in cash or payment in respect of any
Governmental Obligations deposited with it pursuant to Section 12.02 and at the
written direction of the Corporation, the Trustee may invest such funds or
reinvest the proceeds of such payment in Governmental Obligations sufficient to
provide for timely payment of principal, premium, if any, and interest on the
Debt Securities to the stated maturity or redemption, as the case may be.
Section 12.05. In connection with the satisfaction and discharge of this
Indenture with respect to Debt Securities of any series, all money or
Governmental Obligations then held by the paying agent under the provisions of
this Indenture with respect to such series of Debt Securities shall, upon demand
of the Corporation, be paid or delivered to the Trustee and
-54-
thereupon the paying agent, if other than the Trustee, shall be released from
all further liability with respect to such money or Governmental Obligations.
Section 12.06. After full payment of any and all amounts due and owing (i)
pursuant to any provision of this Indenture and (ii) with respect to Debt
Securities of a series, the Trustee and the paying agent, if other than the
Trustee, shall promptly pay to the Corporation upon written request any excess
money, Governmental Obligations or Debt Securities of such series held by them
at any time. Any money or Governmental Obligations deposited with or paid to the
Trustee or the paying agent for the payment of the principal of, premium, if
any, or interest on any Debt Security of any series and not applied but
remaining unclaimed for two years after the date upon which such principal,
premium, if any, or interest shall become due and payable, shall, upon the
written request of the Corporation and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws, be
repaid or delivered to the Corporation by the Trustee for such series or by the
paying agent, if other than the Trustee, and the holder of the Debt Security of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Corporation for any payment which such Debt Securityholder may be
entitled to collect, and all liability of the Trustee or the paying agent, if
other than the Trustee, with respect to such money or Governmental Obligations
shall thereupon cease.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS
Section 13.01. No recourse shall be had for the payment of the principal
of (and premium, if any) or interest, if any, on any Debt Security, or for any
claim based thereon or otherwise in respect thereof or of the indebtedness
represented thereby, or upon any obligation, covenant, or agreement of this
Indenture, against any incorporator, stockholder, officer, or director, as such,
past, present, or future, of the Corporation or of any successor corporation,
either directly or through the Corporation or any successor corporation, whether
by virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Debt Securities are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any incorporator, stockholder, officer, or director, as
such, past, present, or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, because of the incurring of the indebtedness hereby authorized, or
under or by reason of any of the obligations, covenants, promises, or agreements
contained in this Indenture or in any of the Debt Securities or to be implied
herefrom or therefrom, and that all liability, if any, of that character against
every such incorporator, stockholder, officer, and director is, by the
acceptance of the Debt Securities, and as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the Debt
Securities, expressly waived and released.
-55-
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
Section 14.01. The Corporation (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 one or more of or all the following purposes:
(a) to add to the covenants and agreements of the Corporation, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, for the protection or benefit of the holders
of the Debt Securities of any or all series (and if such covenants and
agreements are to be for less than all series of Debt Securities, stating that
such covenants or agreements are expressly being included for the benefit of
such series);
(b) to evidence the succession of another corporation to the
Corporation, or successive successions, and the assumption by a successor
corporation of the covenants and obligations of the Corporation in the Debt
Securities and in this Indenture or any supplemental indenture contained;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make any other
provision in regard to matters or questions arising under this Indenture which
the Board of Directors of the Corporation may deem necessary or desirable and
which shall not adversely affect the interests of the holders of the Debt
Securities in any material respect;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one or
more series or 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 trust
hereunder by more than one trustee;
(e) to establish the form or terms of Debt Securities of any series
as permitted by Sections 2.01 and 3.01 or to authorize the issuance of
additional Debt Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Debt Securities of any
series, as herein set forth, or other conditions, limitations or restrictions
thereafter to be observed;
(f) to add, delete or modify any covenant, agreement or events of
default with respect to all or any series of Debt Securities, the form and terms
of which are being established pursuant to such supplemental indenture as
permitted in Sections 2.01 and 3.01 (and, if any such covenant, agreement or
event of default is applicable to fewer than all such series of the Debt
Securities, specifying the series to which such covenant, agreement or event of
default is applicable), and to specify the rights and remedies of the Trustee
and the holders of such Debt Securities in connection therewith; or
(g) to provide for the issuance under this Indenture of Debt
Securities in coupon form (including Debt Securities registrable as to principal
only) and to provide for
-56-
exchangeability of such Debt Securities for Debt Securities of such series
issued hereunder in fully registered form and to make all appropriate changes
for such purpose.
Subject to the provisions of Section 14.03, the Trustee is authorized to
join with the Corporation in the execution of any such supplemental indenture,
and to make the further agreements and stipulations which may be therein
contained.
Any supplemental indenture authorized by the provisions of this Section
14.01 may be executed by the Corporation and the Trustee without the consent of
the holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 14.02.
Section 14.02. With the consent (evidenced as provided in Article Eight)
of the holders of not less than 66 2/3% in aggregate principal amount of the
outstanding Debt Securities of each series affected thereby, at the time
outstanding, the Corporation, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time 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 any supplemental indenture or of modifying in any manner the rights of the
holder of any Debt Security; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debt Security, or reduce
the rate or extend the time of payment of interest thereon, or reduce the amount
of the principal (or premium, if any) thereof, or reduce the amount of principal
of an Original Issue Discount Security which would be due and payable upon a
declaration of acceleration of the maturity thereof, without the consent of the
holder of such Debt Security, or (ii) reduce the aforesaid percentage of Debt
Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the Debt
Securities of all such series affected thereby then outstanding, or (iii)
modify, without the written consent of the Trustee, the rights, duties, or
immunities of the Trustee.
It shall not be necessary for the consent of the holders of the Debt
Securities of any series under this Section 14.02 to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Any consent given by any holder of a Debt Security under this Section
14.02 shall be irrevocable for a period of six months after the day of execution
thereof, but may be revoked at any time thereafter by such holder or by his
successor in title by filing written notice of such revocation with the Trustee
at its corporate trust office; provided, however, that such consent shall not be
revocable after the holders of not less than 66 2/3% in aggregate principal
amount of the Debt Securities of the series of which such Debt Security is a
part at the time outstanding shall have consented to such supplemental
indenture. No notation on any Debt Security of the fact of such consent shall be
necessary, but any such written consent by the holder of any Debt Security shall
be conclusive and binding on all future holders and owners of the same Debt
Security and of all Debt Securities delivered in exchange therefor, unless
revoked in the manner and during the period provided in this Section 14.02.
Promptly after the execution by the Corporation and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 14.02, the
Corporation shall
-57-
mail a notice, setting forth in general terms the substance of such supplemental
indenture, to the holders of Debt Securities of the affected series at their
addresses as the same shall then appear in the register of the Corporation. Any
failure of the Corporation to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 14.03. Upon the request of the Corporation, accompanied by an
Officers' Certificate and Opinion of Counsel required by Section 15.04 and by:
(a) a supplemental indenture duly executed on behalf of the
Corporation;
(b) a copy of a Board Resolution authorizing the execution and
delivery of said supplemental indenture;
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted by, the
provisions of this Indenture; and
(d) if said supplemental indenture shall be executed pursuant to
Section 14.02, evidence (as provided in Article Eight) of the consent thereto of
the Debt Securityholders required to consent thereto as in Section 14.02
provided,
The Trustee shall join with the Corporation in the execution of said
supplemental indenture unless said supplemental indenture affects the Trustee's
own rights, duties, or immunities under this Indenture or otherwise or is not
reasonably acceptable to the Trustee, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into said supplemental
indenture; and, subject to the provisions of Section 11.02, the Trustee shall be
fully protected in executing any such supplemental indenture and accepting any
additional trusts created thereby or any modifications effected thereby of this
Indenture or of the trusts created by this Indenture, in reliance upon such
Board Resolution and Opinion of Counsel and (if required as aforesaid) evidence
of consent of Debt Securityholders.
Section 14.04. Upon the execution of any supplemental indenture pursuant
to the provisions of this Article Fourteen, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and, except as herein
otherwise expressly provided, the respective rights, limitations of rights,
obligations, duties, and immunities under this Indenture of the Trustee, the
Corporation, and the holders of Debt Securities shall thereafter be determined,
exercised, and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 14.05. Debt Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Fourteen may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Corporation or the
Trustee shall so determine, new Debt Securities so modified as to conform, in
the opinion of the Trustee and the Board of Directors of the Corporation, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by
-58-
the Corporation, authenticated, and delivered as hereinbefore provided in
exchange for the Debt Securities of such series then outstanding in equal
aggregate principal amounts, and such exchange shall be made without cost to the
holders of the Debt Securities.
Section 14.06. Every supplemental indenture executed pursuant to the
provisions of this Article Fourteen shall conform to the requirements of the
Trust Indenture Act of 1939.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Subject to the provisions of Section 6.04, nothing
contained in this Indenture or in the Debt Securities shall be deemed to prevent
the consolidation or merger of the Corporation with or into any other
corporation, or the merger into the Corporation of any other corporation, or the
sale by the Corporation of its property and assets as, or substantially as, an
entirety, or otherwise; provided, however, that (1) in case of any such
consolidation or merger, the corporation resulting from such consolidation or
any corporation other than the Corporation into which such merger shall be made
shall succeed to and be substituted for the Corporation with the same effect as
if it had been named as the Corporation herein and shall become liable and be
bound for, and shall expressly assume, by indenture executed and delivered to
the Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all the Debt Securities then outstanding and the
performance and observance of each and every covenant and condition of this
Indenture on the part of the Corporation to be performed or observed, and (2) as
a condition of any such sale of the property and assets of the Corporation as,
or substantially as, an entirety, the corporation to which such property and
assets shall be sold shall (a) expressly assume, as a part of the purchase price
thereof, the due and punctual payment of the principal of (and premium, if any)
and interest, if any, on all the Debt Securities and the performance and
observance of all the covenants and conditions of this Indenture on the part of
the Corporation to be performed or observed, and (b) simultaneously with the
delivery to it of the conveyances or instruments of transfer of such property
and assets, execute and deliver to the Trustee a proper indenture in form
satisfactory to the Trustee, whereby such purchasing corporation shall so assume
the due and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Debt Securities then outstanding and the
performance and observance of each and every covenant and condition of this
Indenture on the part of the Corporation to be performed or observed, to the
same extent that the Corporation is bound and liable.
The Corporation will not consolidate with any other corporation or accept
a merger of any other corporation into the Corporation or permit the Corporation
to be merged into any other corporation, or sell its properties and assets as,
or substantially as, an entirety, except upon the terms and conditions set forth
in this Section 15.01 and Section 6.04. Upon any consolidation or merger, or any
sale of the properties and assets of the Corporation as, or substantially as, an
entirety in accordance with the provisions of this Section 15.01, the
corporation formed by such consolidation or into which the Corporation shall
have been merged or to which such sale shall have been made shall succeed to and
be substituted for the Corporation with the same effect as if it had been named
herein as a party hereto, and thereafter from time to time such corporation may
exercise each and every right and power of the
-59-
Corporation under this Indenture, in the name of the Corporation or in its own
name; and any act or proceeding by any provision of this Indenture required or
permitted to be done by any board or officer of the Corporation may be done with
like force and effect by the like board or officer of any corporation that shall
at the time be the successor of the Corporation hereunder.
Section 15.02. Nothing in this Indenture expressed and nothing that may be
implied from any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any person or corporation other than the parties
hereto and the holders of the Debt Securities any right, remedy, or claim under
or by reason of this Indenture or any covenant, condition, stipulation, promise,
or agreement hereof, and all covenants, conditions, stipulations, promises, and
agreements in this Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the holders of the
Debt Securities.
Section 15.03. Whenever in this Indenture the Corporation shall be
required to do or not to do anything "so long as any of the Debt Securities
shall be outstanding", the Corporation, notwithstanding any such provision,
shall not be required to comply with such provision if it shall be entitled to
have this Indenture satisfied and discharged pursuant to the provisions hereof,
although the holders of any of the Debt Securities shall have failed to present
and surrender them for payment pursuant to the provisions of this Indenture.
Section 15.04. As evidence of compliance with the conditions precedent
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) which relate to the satisfaction and
discharge of this Indenture or to any other action to be taken or omitted to be
taken by the Trustee at the request or upon the application of the Corporation,
the Corporation will furnish to the Trustee an Officers' Certificate, signed as
provided in this Section 15.04, stating that such conditions precedent have been
complied with and an Opinion of Counsel stating that in his opinion such
conditions precedent have been complied with.
Unless herein otherwise expressly provided, any order, notice, request,
certificate, or statement of the Corporation required or permitted to be filed
with the Trustee, or to be made or given under any provision hereof, shall be
sufficient if it shall have been signed by the Chairman, Vice Chairman,
President, or one of the Vice Presidents and by the Treasurer or one of the
Assistant Treasurers or the Secretary or one of the Assistant Secretaries of the
Corporation.
In any case in which it is provided herein that an Opinion of Counsel
shall or may be furnished to the Trustee, the counsel rendering such opinion may
be counsel for the Corporation.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate or opinion has
read such condition or covenant, (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 such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
condition or covenant has
-60-
been complied with, and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Corporation to take or refrain from taking any
other action in reliance thereon, may, but shall not be obligated to, require
any further evidence or make any further investigation as to the facts or
matters stated therein which it may, in good faith, deem reasonable in the
circumstances, and in connection therewith the Trustee may examine or cause to
be examined the pertinent books, records, and premises of the Corporation or of
any subsidiary; and the Trustee shall, in any such case, require such further
evidence or make such further investigation as may be requested by the holders
of a majority in principal amount of the Debt Securities of all series (each
series voting as a class) affected thereby then outstanding; provided, that, if
payment to the Trustee of the costs, expenses, and liabilities likely to be
incurred by it in making such investigation is not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee before making such investigation may require reasonable indemnity
against such costs, expenses, or liabilities. Any further evidence which may be
requested by the Trustee pursuant to any of the provisions of this paragraph
shall be furnished by the Corporation at its own expense; and any costs,
expenses, and liabilities incurred by the Trustee pursuant to any of the
provisions of this paragraph shall be paid by the Corporation, or, if paid by
the Trustee, shall be repaid by the Corporation, upon demand, with interest at
the rate of 6% per annum, and, until such repayment, shall be secured by a lien
on any moneys held by the Trustee hereunder prior to any rights therein of the
holders of Debt Securities.
Section 15.05. All Debt Securities paid, exchanged, surrendered for
registration of transfer, or otherwise retired shall, if surrendered to the
Corporation or to any paying agent, be delivered to the Trustee for cancellation
and shall be canceled by it or, if surrendered to the Trustee, shall be canceled
by it, and, except as otherwise provided in Article Two, Section 4.03 and
Section 14.05, no Debt Securities shall be issued under this Indenture in lieu
thereof. The Trustee shall make appropriate notations in its records in respect
of all such Debt Securities and shall deliver the canceled Debt Securities to or
on the order of the Corporation or shall dispose of such Debt Securities as
directed by the Corporation and deliver a certificate of such disposition to the
Corporation. If the Corporation shall acquire any of the Debt Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debt Securities unless and until the same
are surrendered to the Trustee for cancellation.
Section 15.06. If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of subsection (c) of Section 318
of the Trust Indenture Act of 1939, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
that impose duties on any person (including provisions automatically deemed
included in an indenture unless the indenture provides that such provisions are
excluded) are a part of and govern this Indenture.
Section 15.07. Any notice or demand authorized by this Indenture to be
served on or given to the Corporation shall be sufficiently served or given for
all purposes if it shall be sent by registered mail to the Corporation addressed
to it at 1211 Avenue of the Americas, New York,
-61-
NY 10036, or at such other address as may have been furnished in writing to the
Trustee by the Corporation.
Any notice or demand authorized by this Indenture to be served on or given
to the Trustee shall be sufficiently served or given for all purposes if it
shall be sent by registered mail to the Trustee addressed to it at the corporate
trust office of the Trustee, or at such other address as may have been furnished
in writing to the Corporation by the Trustee.
Any notice required or permitted to be mailed to a Debt Securityholder by
the Corporation or the Trustee pursuant to the provisions of this Indenture
shall be deemed to be properly mailed by being deposited first class postage
prepaid, in a post office letter box in the United States addressed to such Debt
Securityholder at the address of such holder as shown in the Debt Security
register.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impractical to mail notice of any event to Debt
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 15.08. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 15.09. This Indenture and each Debt Security shall be deemed to be
a contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
-62-
IN WITNESS WHEREOF, CIT Group Inc. has caused this Indenture to be
executed in its corporate name by its Chairman, Vice Chairman, President, or one
of its Vice Presidents, and its corporate seal to be hereunto affixed, Bank One
Trust Company, N.A., in evidence of its acceptance of the trust hereby created,
has caused this Indenture to be executed in its corporate name by one of its
authorized officers, and its seal to be hereunto affixed, all as of the date
first above written and Bank One NA, London Branch, in evidence of its
acceptance of the appointment as London Paying Agent and London Calculation
Agent hereunder, has caused this First Supplemental Indenture to be executed in
its corporate name by one of its authorized officers, and its seal to be
hereunto affixed and to be attested by one of its authorized officers, all as of
the date first above written.
CIT GROUP INC.
By
------------------------------------
Name:
Title:
Attest:
- ------------------------------
Title:
[Corporate Seal]
BANK ONE TRUST COMPANY, N.A., as Trustee
By
------------------------------------
Name:
Title:
Attest:
- ------------------------------
Title:
[Corporate Seal]
-63-
[continuation of signature page to Indenture]
BANK ONE NA, LONDON BRANCH
as London Paying Agent and London
Calculation Agent
By
------------------------------------
Name:
Title:
Attest:
- ------------------------------
Title:
-64-