Exhibit 4.14
Execution Copy
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TRUST INDENTURE
_______________
Dated as of July 1, 1996
between
FEDERAL EXPRESS CORPORATION, as Issuer
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
_______________
DEBT SECURITIES
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Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
TRUST INDENTURE ACT SECTION INDENTURE SECTION
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(S) 310 (a)(1)............... 609
(a)(2)..................... 609
(b)........................ 610
(S) 311(b)(4)................. 613
(b)(6)..................... 613
(S) 312 (a).................. 701
(b)........................ 702
(c)........................ 702
(S) 313 (a).................. 703
(b)(2)..................... 703
(c)........................ 703
(d)........................ 703
(S) 314 (a).................. 704
(c)(1)..................... 102
(c)(2)..................... 102
(e)........................ 102
(f)........................ 102
(S) 316 (a) (last sentence).. 101
(a)(1)(A).................. 502, 512
(a)(1)(B).................. 513
(b)........................ 508
(S) 317 (a)(1)............... 503
(a)(2)..................... 504
(b)........................ 1003
(S) 318 (a).................. 107
_________________________
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
NOTE: Section 318(c) of the Trust Indenture Act provides that the provisions of
Sections 310-317 are a part of and govern every qualified indenture,
whether or not physically contained therein.
TABLE OF CONTENTS
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Parties................................................................. 1
Recitals of the Company................................................. 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definition:
Act................................................................ 2
Additional Amounts................................................. 2
Affiliate.......................................................... 2
Authenticating Agent............................................... 2
Board of Directors................................................. 2
Board Resolution................................................... 2
Business Day....................................................... 3
Commission......................................................... 3
Company............................................................ 3
Company Request; Company Order..................................... 3
Conversion Event................................................... 3
Corporate Trust Office............................................. 3
Corporation........................................................ 3
Currency........................................................... 3
CUSIP Number....................................................... 3
Defaulted Interest................................................. 3
Depository......................................................... 4
Dollars............................................................ 4
ECU................................................................ 4
European Monetary System........................................... 4
European Union..................................................... 4
Event of Default................................................... 4
Foreign Currency................................................... 4
Global Security.................................................... 4
Government Obligations............................................. 4
Holder............................................................. 5
Indenture.......................................................... 5
Indexed Security................................................... 5
Interest........................................................... 5
Interest Payment Date.............................................. 5
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
PAGE
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Maturity........................................................... 5
Officer's Certificate.............................................. 5
Opinion of Counsel................................................. 5
Original Issue Discount Security................................... 5
Outstanding........................................................ 5
Paying Agent....................................................... 7
Person............................................................. 7
Place of Payment................................................... 7
Predecessor Security............................................... 7
Redemption Date.................................................... 7
Redemption Price................................................... 7
Regular Record Date................................................ 7
Responsible Officer................................................ 7
Securities......................................................... 7
Security Register and Security Registrar........................... 7
Special Record Date................................................ 8
Stated Maturity.................................................... 8
Subsidiary......................................................... 8
Trustee............................................................ 8
Trust Indenture Act................................................ 8
Vice President..................................................... 8
Section 102. Compliance Certificates and Opinions.................... 8
Section 103. Form of Documents Delivered to Trustee.................. 9
Section 104. Acts of Holders......................................... 9
Section 105. Notices, Etc. to Trustee and Company.................... 10
Section 106. Notice to Holders; Waiver............................... 10
Section 107. Conflict with Trust Indenture Act....................... 11
Section 108. Effect of Headings and Table of Contents................ 11
Section 109. Successors and Assigns.................................. 11
Section 110. Separability Clause..................................... 11
Section 111. Benefits of Indenture................................... 11
Section 112. Governing Law........................................... 12
Section 113. Legal Holidays.......................................... 12
Section 114. Language of Notices..................................... 12
Section 115. Counterparts............................................ 12
ARTICLE TWO
Security Forms
Section 201. Forms Generally........................................... 12
Section 202. Form of Trustee's Certificate of Authentication........... 13
Section 203. Global Securities......................................... 13
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series...................... 14
Section 302. Denominations............................................. 17
Section 303. Execution, Authentication, Delivery and Dating............ 18
Section 304. Temporary Securities...................................... 19
Section 305. Registration, Transfer and Exchange....................... 20
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.......... 22
Section 307. Payment of Interest; Interest Rights Preserved............ 23
Section 308. Persons Deemed Owners..................................... 25
Section 309. Cancellation.............................................. 25
Section 310. Computation of Interest................................... 25
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture................... 26
Section 402. Application of Trust Money................................ 27
ARTICLE FIVE
Remedies
Section 501. Events of Default......................................... 27
Section 502. Acceleration of Maturity; Rescission and Annulment........ 29
Section 503. Collection of Indebtedness and
Suits for Enforcement by Trustee......................... 30
Section 504. Trustee May File Proofs of Claim.......................... 30
Section 505. Trustee May Enforce Claims
Without Possession of Securities......................... 31
Section 506. Application of Money Collected............................ 32
Section 507. Limitation on Suits....................................... 32
Section 508. Unconditional Right of Holders
to Receive Principal Premium and Interest................ 33
Section 509. Restoration of Rights and Remedies........................ 33
Section 510. Rights and Remedies Cumulative............................ 33
Section 511. Delay or Omission Not Waiver.............................. 33
Section 512. Control by Holders........................................ 34
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Section 513. Waiver of Past Defaults................................... 34
Section 514. Undertaking for Costs..................................... 34
Section 515. Waiver of Stay or Extension Laws.......................... 35
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities...................... 35
Section 602. Notice of Defaults........................................ 36
Section 603. Certain Rights of Trustee................................. 37
Section 604. Not Responsible for Recitals or Issuance of Securities.... 38
Section 605. May Hold Securities....................................... 38
Section 606. Money Held in Trust....................................... 38
Section 607. Compensation and Reimbursement............................ 38
Section 608. Intentionally Left Blank.................................. 39
Section 609. Corporate Trustee Required; Eligibility................... 39
Section 610. Resignation and Removal; Appointment of Successor......... 40
Section 611. Acceptance of Appointment by Successor.................... 41
Section 612. Merger, Conversion, Consolidation
or Succession to Business............................... 43
Section 613. Preferential Claims....................................... 43
Section 614. Appointment of Authenticating Agent....................... 43
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Holders............................................... 45
Section 702. Preservation of Information; Communications to Holders.... 46
Section 703. Reports by Trustee........................................ 47
Section 704. Reports by Company........................................ 47
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc. on Certain Terms............ 48
Section 802. Successor Corporation Substituted......................... 49
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders........ 49
Section 902. Supplemental Indentures with Consent of Holders........... 50
Section 903. Execution of Supplemental Indentures...................... 51
Section 904. Effect of Supplemental Indentures......................... 52
Section 905. Conformity with Trust Indenture Act....................... 52
Section 906. Reference in Securities to Supplemental Indentures........ 52
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, any Premium, Interest
and Additional Amounts................................. 52
Section 1002. Maintenance of Office or Agency.......................... 52
Section 1003. Money for Securities Payments to be Held in Trust........ 53
Section 1004. Corporate Existence...................................... 54
Section 1005. Statement as to Default.................................. 55
Section 1006. Additional Amounts....................................... 55
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article................................. 56
Section 1102. Election to Redeem; Notice to Trustee.................... 56
Section 1103. Selection by Trustee of Securities to be Redeemed........ 56
Section 1104. Notice of Redemption..................................... 57
Section 1105. Deposit of Redemption Price.............................. 58
Section 1106. Securities Payable on Redemption Date.................... 58
Section 1107. Securities Redeemed in Part.............................. 58
ARTICLE TWELVE
Intentionally Left Blank
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance............ 59
Section 1302. Defeasance and Discharge................................ 59
Section 1303. Covenant Defeasance..................................... 60
Section 1304. Conditions to Defeasance or Covenant Defeasance......... 60
Section 1305. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.......... 62
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article................................ 63
Section 1402. Satisfaction of Sinking Fund Payments with Securities... 63
Section 1403. Redemption of Securities for Sinking Fund............... 64
ARTICLE FIFTEEN
Securities in Foreign Currencies
Section 1501. Applicability of Article................................. 64
SCHEDULE I Supplemental Indenture....................................
EXHIBIT A Form of Debt Security.....................................
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TRUST INDENTURE
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INDENTURE, dated as of July 1, 1996, between Federal Express
Corporation, a Delaware Corporation (the "Company") and The First National Bank
of Chicago, a national banking association organized under the laws of the
United States of America, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
unsecured debentures, bonds, notes or other evidences of indebtedness (herein
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided;
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done; and
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America as of the
date of such computation; and
(4) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act" when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of the board of directors of the Company.
"Board Resolution" means a copy of one or more resolutions certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, delivered to the Trustee.
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"Business Day" means any day other than Saturday, Sunday or other day
on which banking institutions in New York, Illinois or Tennessee are authorized
or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means Federal Express Corporation or any successor
Corporation which shall have become such under this Indenture.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or any Vice President and
delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which issued
such Foreign Currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be principally administered, which office at the date of original execution of
this Indenture is located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
3
"Depository" means, with respect to the Securities of any series
issuable upon original issuance in whole or in part in the form of one or more
Global Securities, the clearing agency registered under the Securities Exchange
Act of 1934, as amended, specified for that purpose as contemplated by Section
301.
"Dollars" means a dollar or other equivalent unit of legal tender for
payment of debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from
time to time by the Counsel of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, issued to the
Depository with respect to such series or its nominee and registered in the name
of such Depository or nominee.
"Government Obligations" means securities which are (x) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on any Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments, or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other governments or governments, in each case where the payment
or payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other governments or
governments, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a
bank as custodian with respect to any such Government Obligation or a specific
payment of principal of or interest on any such Government Obligation held by
such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
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depository receipt from any amount received by the custodian in respect to the
Government Obligation or the specific payment of principal of or interest on the
Government Obligation evidenced by such depository receipt.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
each particular series of Securities established as contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1006, includes such Additional
Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," with respect to any Security, means the date on which the
principal of such Security, or an installment of principal, becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or repurchase or otherwise and
includes the Redemption Date.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the President or any Vice President of the Company, and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or of counsel to the Company, or other counsel reasonably
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security issued pursuant
to this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration of the
Maturity pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment at the Maturity thereof money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities for whose payment or redemption money or Government
Obligations as contemplated by Section 1304 in the necessary amount have
been theretofore deposited with the Trustee (or another trustee satisfying
the requirements of Section 609) in trust for the Holders of such
Securities in accordance with Section 1305; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, unless there shall have been
presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be equal to the amount of the principal thereof that would be
due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of any
Indexed Security that may be counted in making such determination and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
in this Indenture, (iii) the principal amount of a Security denominated in a
Foreign Currency shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, and (iv) Securities owned by the Company or any other
obligor or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor or any Affiliate of the Company or of such other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," with respect to the Securities of any series,
means the place where the principal of (and premium, if any), interest on, and
Additional Amounts with respect to, the Securities of that series are payable as
provided in or pursuant to this Indenture or such Securities.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified in or pursuant to
this Indenture or such Security as the "Regular Record Date."
"Responsible Officer," means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture, provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
any such Person shall mean securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
7
"Special Record Date" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts, means the date
established by or pursuant to this Indenture or such Security as the fixed date
on which the principal of such Security or such installment of principal or
interest is, or such Additional Amounts are, due and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls, directly
or indirectly, more than 50% of the shares of voting stock. For the purposes of
this definition, "voting stock" means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder. If
at any time there is more than one such Person, "Trustee" shall mean such Person
and as used with respect to the Securities of any series shall mean the Trustee
with respect to Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
-------------------------------------
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with or
an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished. Any Officer's Certificate will comply with Section
314(e) of the Trust Indenture Act.
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Section 103. Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which the certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
----------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
9
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities of any
series any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, fix in advance a record date for the
determination of Holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Any such record date shall be fixed at the
Company's discretion. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent and waiver or other Act may be sought
or given before or after the record date, but only the Holders of Securities of
record at the close of business on such record date shall be deemed to be
Holders of Securities for the purpose of determining whether Holders of the
requisite proportion of Securities of such series Outstanding have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Securities of such series
Outstanding shall be computed as of such record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
Section 105. Notices, Etc. to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office; or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company at 2007
Corporate Avenue, Memphis, Tennessee 38132, attention Vice President and
Treasurer, or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
--------------------------
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein or
in such
10
Security expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at the Holder's address
as it appears in the Security Register, not later than the latest date, or not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given or provided.
Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
--------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and
11
the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
--------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of Tennessee.
Section 113. Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) or any
Additional Amounts need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and no interest shall accrue with respect to
such payments for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to the next succeeding
Business Day.
Section 114. Language of Notices.
--------------------
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 115. Counterparts.
-------------
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
----------------
The Securities of each series shall be in substantially the form
attached hereto as Exhibit A as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
12
If any form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at the same time as or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
The definitive Securities may be produced in any manner determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without coupons
and shall not be issuable upon the exercise of warrants.
Section 202. Form of Trustee's Certificate of Authentication.
------------------------------------------------
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By: ___________________________
Authorized Officer
Section 203. Global Securities.
------------------
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issued in global form. Any such Security
may provide that it or any number of such Securities shall represent the
aggregate amount of all Outstanding Securities of such series (or such lessor
amount as is permitted by the terms thereof) from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto.
Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 303
or 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to a
13
Security in global form shall be in writing but need
not be accompanied by or contained in an Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in global form shall be made to the Person specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder, the holder of such global
Security in registered form.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable for
Securities registered in the name of a Person other than the Depository or
its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Security (other than a transfer of this Security as
a whole by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository) may
be registered except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
-------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 303)
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series (subject
to the last paragraph of this Section 301):
(1) the title of the Securities and the series in which such
Securities shall be included (which shall distinguish the Securities of the
series from all other Securities);
14
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant
to Section 303 are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the Person to whom any interest on any Security of the series
shall be payable if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, the rate or rates, which may be fixed or
variable, at which the Securities of the series shall bear interest, if any, if
the rate is variable, the manner of calculation thereof, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest payable
on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any)
and interest, if any, on Securities of the series shall be payable;
(6) the date or dates on which, the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the date or dates on which, the period or
periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation and any provisions for the remarketing of
such securities so redeemed or purchased;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion is to be determined;
(10) the application, if any, of either or both of Section 1302 and
Section 1303 to the Securities of the series;
15
(11) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(12) if the principal of (and premium, if any) or interest, if any, on
the Securities of that series are to be payable, at the election of the Company
or a holder thereof, in a currency (including a composite currency) other than
that in which the Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of (and premium if any) or
interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method or methods based on a currency
(including a composite currency) other than that in which the Securities are
stated to be payable, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(14) if the amount of payments of principal of, any premium or
interest on the Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(15) whether any Securities of the series are to be issuable upon
original issuance in the form of one or more Global Securities and, if so, (i)
the Depository with respect to such Global Security or Securities and (ii) the
circumstances under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global Security
may be registered to, a Person other than such Depository or its nominee, if
other than as set forth in Section 305;
(16) whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable;
(17) the notice, if any, to Holders regarding the determination of
interest on a floating rate Security and the manner of giving such notice, and
the basis upon which interest shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(18) intentionally left blank;
(19) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any Securities, whether
or not such Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(20) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates or
other documents or
16
satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions;
(21) if there is more than one Trustee, the identify of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying Agent
or Authenticating Agent with respect to such Securities; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) and any deletions from or
modifications or additions to this Indenture in respect of such series.
All Securities of any one series shall be substantially identical
except as to denomination, currency, rate of interest, or method of determining
the rate of interest, if any, Maturity, and the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to such
Board Resolution referred to above and (subject to Section 303) set forth in the
Officer's Certificate referred to above or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a
Board Resolution, a copy of the Board Resolution shall be delivered to the
Trustee at the same time as or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
Notwithstanding any contrary terms of this Section 301, the terms of
the Securities of any series may provide, without limitation, that the
Securities shall be authenticated and delivered by the Trustee on original issue
from time to time upon telephonic or written order of Persons designated in the
Officer's Certificate or supplemental indenture and that such Persons are
authorized to determine, consistent with such Officer's Certificate or any
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such certificate or supplemental indenture. All
Securities of any one series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
Section 302. Denominations.
--------------
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. The Securities of each
series shall be issuable only in fully registered form without coupons in such
denominations as shall be specified pursuant to Section 301. In the absence of
any such provision with respect to the Securities of any series, the Securities
of such series shall be issuable in denominations of $1,000 and any integral
multiple thereof. Securities not denominated in Dollars shall be issuable in
such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
17
Section 303. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by its
President or any Vice President, under its corporate seal reproduced thereon
attested by its Secretary or any Assistant Secretary. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were the proper officers of the Company when their signatures were affixed
to such Securities shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions or indentures supplemental hereto as
permitted by Sections 201 and 301, in authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon:
(1) an Opinion of Counsel to the effect that:
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture;
(c) this Indenture has been qualified under the Trust Indenture Act;
and
(d) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors' rights and
to general equity principles and will entitle the Holders thereof to the
benefits of this Indenture; and
18
(2) an Officer's Certificate stating that, to the best knowledge of
the Person executing such certificate, no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver an Opinion of Counsel, Officer's
Certificate or the Company Order otherwise required at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the time of authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by, or on behalf of, the Trustee or by the Authenticating Agent by
manual signature. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
The Trustee shall not be required to authenticate or to cause an
Authentication Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Section 304. Temporary Securities.
---------------------
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and, upon Company Order, the
Trustee shall authenticate and deliver in the manner provided in Section 303,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
19
If temporary Securities of any series are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay. After
the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities at the office or agency
of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
the same series and of like tenor of authorized denomination containing terms
and provisions that are identical to those of any temporary Securities. Until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series.
Section 305. Registration, Transfer and Exchange.
------------------------------------
The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
The Company shall have the right to remove and replace from time to
time the Security Registrar for any series of Securities; provided that no such
--------
removal or replacement shall be effective until a successor Security Registrar
with respect to such series of Securities shall have been appointed by the
Company and shall have accepted such appointment by the Company. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor containing identical terms and provisions.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series containing identical terms and
provisions in any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
20
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
Except as otherwise provided herein, the Company shall not be required
(i) to issue, register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities of such series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security of any series shall be
exchangeable for definitive Securities only if: (a) such Depository is
unwilling, unable or ineligible to continue as Depository with respect to such
Global Security and a successor depository is not appointed by the Company
within 90 days or if at any time the Depository with respect to such Global
Security ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, or (b) the Company executes and delivers to the Trustee
a Company Order providing that such Global Security shall be so exchangeable and
the transfer thereof so registrable.
If the beneficial owners of interests in a Global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in the preceding sentence, then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture,
and of the same series, containing identical terms and in aggregate principal
amount equal to the principal amount of such Global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such Global Security shall be surrendered from time to time by the
Depository and in accordance with instructions given to the Trustee and the
Depository (which instructions shall be in writing but need not be contained in
21
or accompanied by an Officers Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as described above without charge.
The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such Global Security to be
exchanged, which shall be in the form of Securities, as shall be specified by
the beneficial owner thereof, provided, however, that no such exchanges may
-----------------
occur during a period beginning at the opening of business 15 days before any
selection of Securities of the same series to be redeemed and ending on the
relevant Redemption Date.
Promptly following any such exchange in part, such global Security
shall be returned by the Trustee to such Depository in accordance with the
instructions of the Company referred to above. If a Security is issued in
exchange for any portion of a Global Security after the close of business at the
office or agency for such Security where such exchange occurs on or after (i)
any Regular Record Date for such Security and before the opening of business at
such office or agency on the next Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such office
or agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Security, but shall be payable on such Interest Payment Date or proposed
date for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such Global Security shall be payable in accordance
with the provisions of this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If (i) any mutilated Security is surrendered to the Trustee or if
there shall be delivered to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) there
shall be delivered to the Company and the Trustee such indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of the same series
containing identical terms and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
22
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute a separate
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture, are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on and any Additional Amounts with respect
to any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on, and any Additional Amounts with respect to, any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment. Such money
when deposited will be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and
23
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the Holder's address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Securities may be paid by
mailing a check to the address of the Person entitled thereto as such address
shall appear in the Security Register or by transfer to an account maintained by
the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
24
Section 308. Persons Deemed Owners.
----------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on and any Additional
Amounts with respect to such Security and for all other purposes whatsoever,
whether or not any payment with respect to such Security shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 309. Cancellation.
-------------
All Securities surrendered for payment, redemption, registration of
transfer, exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever
and may deliver to the Trustee (or to an Authenticating Agent for delivery to
the Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall
be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
Section 310. Computation of Interest.
------------------------
Except as otherwise specified pursuant to Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
25
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to rights of registration of transfer or exchange of
Securities), and the Trustee on receipt of the Company Request, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest and any Additional Amounts to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be.
26
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's Certificate
or an Opinion of Counsel, stating that all conditions precedent herein
relating to the satisfaction and discharge of this Indenture with respect
to such Securities have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any series, the obligations of the Company to the
Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations under
Sections 304, 305, 306, 1002 and 1003, and the obligation to pay Additional
Amounts, if any, with respect to such Securities as contemplated by Section 1006
(but only to the extent that any Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional Amounts
pursuant to Section 401(1)(B), shall survive.
Section 402. Application of Trust Money.
---------------------------
Subject to the provisions of the penultimate paragraph of Section
1003, all money and Government Obligations deposited with the Trustee pursuant
to Section 401 and Article 13 shall be held in trust and applied by it, in
accordance with the provisions of the Securities of the series for which such
deposit was made and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any), interest and Additional Amounts for whose payment such money
and Government Obligations has been deposited with the Trustee; but such money
and Government Obligations need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
------------------
"Event of Default," wherever used herein with respect to the
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any
27
order, rule or regulation of any administrative or governmental body), unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest upon any Security of such
series when it becomes due and payable, and continuance of such default for
a period of 30 days;
(2) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity;
(3) default in the performance, or breach, of any covenant, agreement
or warranty of the Company in this Indenture (other than a covenant,
agreement or warranty a default in whose performance is elsewhere in this
Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of series of Securities other than
such series) and continuance of such default for a period of 60 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
50% in principal amount of the Outstanding Securities of such series a
written notice specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series;
(5) the entry by a court having jurisdiction of a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under federal bankruptcy law or
any other applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days;
(6) the commencement by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the commencement of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
federal bankruptcy law or any other applicable federal or state law, or the
consent by it to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of a general assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay
28
its debts generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(7) any other Event of Default provided pursuant to Section 301 with
respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 50% in principal amount of the Outstanding
Securities of such series may declare the principal amount of all the Securities
of such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before the Stated Maturity thereof,
the Holders of a majority in principal amount of the Outstanding Securities of
such series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on and any Additional
Amounts with respect to all Securities of such series;
(B) the principal of (and premium, if any on) any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities of such series and any Additional Amounts;
(C) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue interest or Additional
Amounts at the rate borne by the Securities of such series; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to the Securities of such
series, other than the non-payment of the principal of Securities of such
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
29
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
----------------------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest on any Securities
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Securities at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Securities and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sum so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of the Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
---------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the
30
Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest and Additional Amounts owing and unpaid in
respect of the Securities and to file such other papers and documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
------------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted by the Trustee without the possession of any of the Securities
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
31
Section 506. Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any), interest or Additional Amounts, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), interest and Additional Amounts on the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
(and premium, if any), interest and Additional Amounts, respectively; and
Third: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section 507. Limitation on Suits.
--------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 50% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceedings; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series.
It being understood and intended that no one or more Holders of Securities shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this
32
Indenture to affect, disturb or prejudice the right of any other such Holders of
Securities of such series, or to obtain or to seek to obtain priority or
preference over any other such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders of Securities.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
---------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any, on) and (subject to
Section 307) interest on, and any Additional Amounts with respect to, such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment and such rights shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceedings has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may
33
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
-------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
--------------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with such Securities;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to Section 601, the Trustee need not take any action which
might be prejudicial to the Holders of such series not consenting.
Section 513. Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect
to such series, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Section 514. Undertaking for Costs.
----------------------
All parties to this Indenture agree, and each Holder of any Security
by acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable
34
costs, including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
35
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct; except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
-------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and provided, further,
that in the case of any default of the character specified in Section 501(3)
with respect to the Securities of such series no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
36
Section 603. Certain Rights of Trustee.
--------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
37
Section 604. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assume no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities.
--------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
613, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Section 606. Money Held in Trust.
--------------------
Except as otherwise provided herein, money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
-------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the
38
trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to
the extent that any such loss, liability or expense was due to the
Trustee's negligence or bad faith.
Section 608. Intentionally Left Blank
------------------------
Section 609. Corporate Trustee Required; Eligibility.
----------------------------------------
(1) There shall at all times be a Trustee hereunder which shall:
(i) be a Corporation organized and doing business under the laws of
the United States of America, any State thereof or the District
of Columbia authorized under such laws to exercise corporate
trust powers;
(ii) be eligible under Section 310(a) of the Trust Indenture Act to
act as trustee under an indenture qualified under the Trust
Indenture Act; and
(iii) have a combined capital and surplus of at least $100,000,000
and subject to supervision or examination by federal or state
authority.
If such Corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(2) The following Indenture shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(1)
of the Trust Indenture Act: Indenture between AllianceAirport Authority Inc.
(the "Authority") and The First National Bank of Chicago, as trustee, dated as
of April 1, 1996 relating to the Authority's Special Facilities Revenue Bonds
(Federal Express Corporation Project), Series 1996.
39
Section 610. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Company or by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee, and to the Company in the case of an Act of the Holders.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act with respect to the
Securities after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months;
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities or the Securities of such series, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of such Holder and all other similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those Series (it
40
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series).
If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of 75% in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and supersede the successor Trustee
appointed by the Company.
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
---------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which,
41
(1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee.
It being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
Upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such a acceptance such successor Trustee shall be qualified and eligible
under this Article.
42
Section 612. Merger, Conversion, Consolidation or Succession to Business.
------------------------------------------------------------
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Claims.
--------------------
Reference is made to Section 311 of the Trust Indenture Act. For
purposes of Section 311(b)(4) and (6) of such Act:
(1) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(2) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 614. Appointment of Authenticating Agent.
------------------------------------
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in the Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be
43
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a Corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days'
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provision of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
44
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By _______________________________
As Authenticating Agent
By _______________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
----------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of each series:
(a) semi-annually, not later than each Interest Payment Date for such
series (or, in the case of any series not having semi-annual Interest
Payment Dates, semi-annually, not later than the dates determined pursuant
to Section 301 for such series) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of the
preceding Regular Record Date (or as of such other date determined pursuant
to Section 301 for such series) therefore, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
45
provided, however, that so long as the Trustee is the Security Registrar no such
- -----------------
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
-------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of the Securities of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of such Holders received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any list of the
Holders of Securities of any series furnished to it as provided in Section 701
upon receipt of a new list of such Holders.
(b) If three or more Holders of Securities of any series (herein
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series with respect to
their rights under this Indenture or under the Securities of such series and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a) with respect to the
Securities of such series, or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 702(a) a copy of the form or proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the
46
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
-------------------
(a) Within 60 days after May 1 of each year commencing with the year
1997, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, such brief report dated as of such
May 1, if any, as may be required by Section 313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
-------------------
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports which the Company may
be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
47
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc. on Certain Terms.
-----------------------------------------------
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person, or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any Person, unless:
(1) in case the Company shall consolidate with or merge into another
Corporation or convey, transfer or lease its properties and assets as, or
substantially as, an entirety to any Person, the Corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer, or lease the properties and assets of the
Company, as, or substantially as, an entirety shall be a Corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any), interest on and any Additional Amounts
with respect to all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, or event which after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
48
Section 802. Successor Corporation Substituted.
----------------------------------
Upon any consolidation by the Company with or merger by the Company
into any other Corporation or any conveyance, transfer or lease of the
properties and assets of the Company as, or substantially as, an entirety to any
Person in accordance with Section 801, the successor Corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Corporation has been named as the Company
herein, and thereafter, except in the case of a lease to another Person, the
predecessor Corporation shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and, if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(3) to add any additional Events of Default with respect to Securities
of any or all series;
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision;
(5) to secure the Securities of any or all series;
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this
49
Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect;
(7) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons;
(8) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301;
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b);
(10) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article 13, provided that
--------
no such supplement shall materially adversely affect the interest of the
Holders of any Securities then Outstanding; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
--------
materially adversely affect the interest of the Holders of any Securities
then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
-----------------
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any such Security, or reduce the principal amount thereof
or any
50
interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the currency in which, any such Security or any premium
or the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of those Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or the provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities or any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
51
Section 904. Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, any Premium, Interest and Additional
----------------------------------------------------------
Amounts.
--------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on and any Additional Amounts with respect to
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
--------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series may be presented
or surrendered for registration or transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices
52
and demands may be made or served at the Corporate Trust Office of Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-----------------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 1003. Money for Securities Payments to be Held in Trust.
--------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of or
interest on any Securities of such series, deposit with a Paying Agent a sum
sufficient to pay the principal (or premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit
53
of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee (or another trustee satisfying the requirements of Section 609)
in respect of Government Obligations deposited with the Trustee (or such other
trustee) pursuant to Section 1304, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust. The Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.
The Trustee or such Paying Agent, before being required to make any
such repayment, may publish, in the English language, in a newspaper customarily
published on each Business Day and of general circulation in the City of New
York, New York, or to be mailed to such Holder or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the earlier of the date of such publication or such
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 1004. Corporate Existence.
--------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
------------------
that the foregoing shall not obligate the Company to preserve any such right or
franchise if the Company
54
shall determine that the preservation thereof is no longer desirable in the
conduct of its business and that the loss thereof is not disadvantageous in any
material respect to any Holder.
Section 1005. Statement as to Default.
------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officer's Certificate, stating as to each signer thereof
that he or she is familiar with the affairs of the Company and whether or not to
such officer's knowledge the Company is in compliance (without regard to any
period of grace or requirement of notice) with all conditions and covenants of
this Indenture. The officer executing such certificate shall be the Company's
principal executive, finance or accounting officer and such certificate need not
comply with Section 314(e) of the Trust Indenture Act.
Section 1006. Additional Amounts
------------------
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security Additional
Amounts as provided in or pursuant to this Indenture or such Securities.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
hereby or pursuant hereto to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such terms,
and express mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officer's Certificate, the Company
shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an
Officer's Certificate instructing the Trustee and such Paying Agent whether such
payment of principal of an premium, if any, or interest on the Securities of
such series shall be made to Holders of Securities of such series who are United
States aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such series. If any
such withholding shall be required, then such Officer's Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities, and the Company agrees to pay to the Trustee or
such Paying Agent the Additional Amounts required by the terms of such
Securities.
55
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
-------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified pursuant to Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
--------------------------------------
In case of any redemption of less than all the Securities of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
--------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series subject to such redemption and not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series and tenor or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any
56
Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
---------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed. Failure to give notice by
mailing in the manner herein provided to the Holder of any Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any Series and
tenor are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
(7) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed; and
(8) the CUSIP Number or the Euroclear or the Cedel Bank reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
Notice of redemption of Securities to be redeemed shall be given by
the Company or, on Company Request, by the Trustee at the expense of the
Company.
57
Section 1105. Deposit of Redemption Price.
----------------------------
On or before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
--------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
-----------------
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular or Special Record Dates according
to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
Section 1107. Securities Redeemed in Part.
----------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or the Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
If a Global Security is so surrendered, the Company shall execute, and
the Trustee shall authenticate and deliver to the Depository, without service
charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered.
58
ARTICLE TWELVE
Intentionally Left Blank
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
---------------------------------------------------------------
or Covenant Defeasance.
-----------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303 to apply to
Securities of any series, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article Thirteen,
shall be applicable to the Securities of such series, and the Company may at its
option, at any time, with respect to the Securities of such series, elect to
have either Section 1302 (if applicable) or Section 1303 (if applicable) be
applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
-------------------------
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on and Additional Amounts, if any, with respect
to, such Securities when such payments are due;
(B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 607, 1002, 1003 and 1006 (but only to the extent that
any Additional Amounts payable exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 1304(1) below);
59
(C) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303 with respect to the Securities of such series.
Section 1303. Covenant Defeasance.
--------------------
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 801,
1005, 501(3) (as to Sections 801 and 1005), 501(5), 501(6) and 501(7) (if
Section 501(7) is specified as applicable to the Securities of such series) with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to
the Outstanding Securities of such series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Following a covenant defeasance, payment of the Securities of such series may
not be accelerated because of an Event of Default specified above in this
Section 1303.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of either Section
1302 or Section 1303 to the Outstanding Securities of such series.
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A) an
amount in Dollars or in such Foreign Currency in which such Securities are
then specified as payable at Stated Maturity, or (B) Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, on the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and
60
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if an) and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. Before such a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of any series of Securities
at a future date in accordance with any redemption provisions contained in
the Supplemental Indenture relating to such series, which shall be given
effect in applying the foregoing.
(2) No Event of Default or event with which notice of lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit and, with respect to defeasance only, at any time during the period
ending on the 123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be
deleted.
(6) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
61
(7) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that all conditions precedent
provided for in the Indenture relating to either the defeasance under
Section 1302 or the covenant defeasance under Section 1303 (as the case may
be) have been complied with.
Section 1305. Deposited Money and Government Obligations to be Held in Trust;
---------------------------------------------------------------
Other Miscellaneous Provisions.
-------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee -- collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest and
Additional Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if after a deposit referred in Section 1302 has been made, (a) Holder
of a Security in respect of which such deposit was made is entitled to, and
does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant to 1302 has
been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section 1302
has been made, the indebtedness represented by such Security shall be deemed to
have been, and will be, fully discharged and satisfied through the payment of
the principal of (and premium, if any), and interest, if any, on and Additional
Amounts, if any, with respect to, such Security as the same becomes due out of
the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on
62
(x) in the case of payments made pursuant to clause (a) above, the applicable
market exchange rate for such Currency in effect on the second Business Day
prior to each payment date, or (y) with respect to a Conversion Event, the
applicable market exchange rate for such Foreign Currency in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
1304 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article.
-------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1402. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 1402. Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
The Company may (1) deliver Outstanding Securities of a series (other
than any of such Securities previously called for redemption) and (2) apply as a
credit Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such series of Securities, or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities,
63
in each case in satisfaction of all or any part of any sinking fund payment
required to be made pursuant to the terms of such Securities, as provided by the
terms of such Securities, provided that such have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such required sinking
fund payment shall be reduced accordingly.
Section 1403. Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for such series pursuant to the terms of such 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 Securities
of that series pursuant to Section 1402, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, hereof and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 45 days prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE FIFTEEN
Securities in Foreign Currencies
Section 1501. Applicability of Article.
-------------------------
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in this Indenture or the Securities, any amount in respect of any
Security denominated in a Currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be obtained for
such amount on such reasonable basis of exchange and as of the record date with
respect to Securities of such series (if any) for such action, determination of
rights or distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action, determination of
rights or distribution) as the Company may specify in a written notice to the
Trustee or, in the absence of such written notice, as the Trustee may determine.
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first above written.
FEDERAL EXPRESS CORPORATION,
Issuer
Attest:
/s/ SCOTT E. HANSEN By /s/ BURNETTA B. WILLIAMS
Name: Scott E. Hansen Name: Burnetta B. Williams
Title: Assistant Secretary Title: Assistant Treasurer and Managing
Director - Corporate Finance
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
Attest:
/s/ A. MOVITZ By /s/ JOHN R. PRENDIVILLE
Name: A. Movitz Name: John R. Prendiville
Title: Trust Officer Title: Vice President
65
SCHEDULE I
FEDERAL EXPRESS CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
__________________________________________________________________
Supplemental Indenture
No. __
Dated as of _____________, ______
__________________________________________________________________
___% Notes due __________________, ______
SUPPLEMENTAL INDENTURE NO. ___, dated as of __________, _____ between
Federal Express Corporation, a Delaware Corporation (the "Company") and The
First National Bank of Chicago, a national banking association organized under
the laws of the United States of America (herein called the "Trustee") as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company and the Trustee have executed and delivered an Indenture
dated as of July 1, 1996, as amended or supplemented (the "Indenture") to
provide for the issuance from time to time of the Company's Securities.
Sections 201 and 301 of the Indenture provide that the form and terms
of Securities of any series may be established pursuant to an indenture
supplemental to the Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and under the Indenture and
duly issued by the Company and to make this Supplemental Indenture No. ___ a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, this Indenture witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the holders hereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the holders of the Securities of the series
hereby established, as follows:
ARTICLE ONE
Relation to the Indenture;
Definitions and Other Provisions of
General Application
Section 1.01. Relation to the Indenture. This Supplemental Indenture
-------------------------
No. ___ constitutes an integral part of the Indenture.
Section 1.02. Definitions and Other Provisions of General
-------------------------------------------
Application. For all purposes of this Supplemental Indenture No. ___ unless
- ------------
otherwise specified herein:
(a) all terms defined in this Indenture which are used and not
otherwise defined herein shall have the meanings they are given in the
Indenture; and
(b) the provisions of general application stated in Section 101 of the
Indenture shall apply to this Supplemental Indenture No. __, except that the
words "herein," "hereof," "hereto" and "hereunder" and other words of similar
import refer
to this Supplemental Indenture as a whole and not to the Indenture or any
particular Article, Section or other subdivision of the Indenture or this
Supplemental Indenture No. ___.
ARTICLE TWO
The Series of Notes
Section 2.01. Title.
------
There shall be a series of Securities designated the "___% Notes due
__________, __________" (the "Notes").
Section 2.02. Principal Amount.
-----------------
The aggregate principal amount of the Notes which may be authenticated
and delivered under this Supplemental Indenture shall not exceed $__________
(except for Notes which may be authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections
304, 305, 306, 906 or 1107 of the Indenture).
Section 2.03. Maturity.
---------
The date on which the principal of the Notes shall be payable shall be
__________.
Section 2.04. Interest.
---------
[The Notes shall bear interest at the rate of [ ]% per annum.
Interest shall accrue from __________, _____ or from the most recent Interest
Payment Date to which interest has been paid or provided for. Accrued interest
shall be payable on _________, _____ and on each _____ and _____ thereafter, to
the persons in whose names the Notes are registered at the close of business on
the preceding _____ or _____, as the case may be.]
[Insert other interest provisions if necessary]
Section 2.05. Place of Payment.
-----------------
[The Place of Payment for the Notes shall be at the Corporate Trust
office of the Trustee at ____________ or such other office of the Paying Agent
as the Paying Agent may reasonably request by notice to the Company and the
Trustee (if the Paying Agent is not the Trustee).]
2
Section 2.06. Redemption.
-----------
[Insert redemption terms]
The provisions of Article Thirteen of the Indenture [shall/shall not]
apply to the Notes.
Section 2.08. Intentionally left blank.
Section 2.09. Form of Notes.
--------------
The Notes shall be in the form of Exhibit A attached hereto.
Section 2.10 Currency.
---------
[Insert currency terms.]
Section 2.11 Sinking Fund.
-------------
[Insert sinking fund terms.]
Section 2.13 Additional Amounts.
-------------------
The provisions of Section 1006 of the Indenture [shall/shall not]
apply to the Notes.
ARTICLE THREE
Miscellaneous Provisions
Section 3.01. Supplemental Indenture.
-----------------------
The Indenture, as supplemented and amended by this Supplemental
Indenture No. __, is in all respects hereby adopted, ratified and confirmed.
Section 3.02. Counterparts.
-------------
This Supplemental Indenture No. __ may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. __ to be duly executed, as of the day and year first written
above.
FEDERAL EXPRESS CORPORATION
Attest:
_______________________________ By ___________________________
Name: Name:
Title: Title:
THE FIRST NATIONAL BANK OF
CHICAGO
Attest:
______________________________ By __________________________
Name: Name:
Title: Title:
4
Exhibit A
to Indenture
------------
REGISTERED
No._____________________ PRINCIPAL AMOUNT:
$________________
CUSIP NO. ____________________
FEDERAL EXPRESS CORPORATION
_______ % Note due_____________ , _____
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55 WATER
STREET, NEW YORK, NEW YORK), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
FEDERAL EXPRESS CORPORATION, a Delaware Corporation, (the "Company"
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay
CEDE & CO.
C/O THE DEPOSITORY TRUST COMPANY
55 WATER STREET
NEW YORK, NEW YORK 10041
or registered assigns, the principal sum of
DOLLARS
on ________________ , _______ (the "Maturity Date") and to pay interest thereon
from _________________ , _____ or from the most recent "Interest Payment
Date" to which interest has been paid or duly provided for, semi-annually on
____________________________ and ______________ of each year,
commencing,________________,__________________, and on the Maturity Date, at the
rate of % per annum, until the principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the "Regular Record Date" for such interest, which shall be the __________ or
______________(whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the registered
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee referred to on the reverse hereof, notice of which shall
be given to Holders of Notes of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
The Company will at all times appoint and maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of and
interest on any Notes of this series on behalf of the Company and having an
office or agency in Chicago, Illinois and in such other cities, if any, as the
Company may designate in writing to the Trustee (the "Place of Payment") where
Notes of this series may be presented or surrendered for payment and where
notices, designations or requests in respect for payments with respect to Notes
of this series may be served. The Company has initially appointed The First
National Bank of Chicago as such Paying Agent.
Interest payments on this Note will be computed and paid on the basis
of a 360-day year of twelve 30-day months. Interest payable on this Note on any
Interest Payment Date and on the Maturity Date will include interest accrued
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for (or from and including __________ , ________, if
no interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day (as defined below), principal or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be, will
be paid on the next succeeding Business Day with the same force and effect as if
it were paid on the date such payment was due, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be. "Business Day" means any day other
than Saturday, Sunday or other day on which banking institutions in New York,
Illinois or Tennessee are obligated or authorized by law to close.
The principal and interest payable on this Note will be made by wire
transfer of immediately available funds to the Holder hereof in such currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
FEDERAL EXPRESS CORPORATION
By:_______________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO,
As Trustee
By:____________________________
Authorized Signatory
Dated:__________________________
3
FEDERAL EXPRESS CORPORATION
______% Note due______________ , _________
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), limited in aggregate principal amount to $
- ---------------- (except as otherwise provided in the Indenture), issued and to
be issued as one series of debt securities of the Company under an Indenture,
dated as of July __, 1996, as amended and supplemented from time to time (the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. In addition to the Notes, the Company is authorized
to issue an unlimited amount of debt securities in one or more series (herein
collectively with the Notes called the "Debt Securities") under the Indenture.
This Note is not redeemable at the option of the Company or at the
option of the Holder prior to the Maturity Date [and is not subject to any
sinking fund].
In case an Event of Default with respect to the Notes of this series
shall occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities or each series to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of a majority in principal amount of each series of Debt Securities
to be affected if less than all series are to be affected by such modification
or amendment. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Debt Securities of each series
at the time Outstanding, on behalf of the Holders of all Debt Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note or Notes issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, the transfer of this Note is registerable in the Security
Register, upon
4
surrender of this Note for registration of transfer at the office or agency of
the Company in the Place of Payment, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Notes of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, Notes of this series issued in definitive registered form
are exchangeable for the same aggregate principal amount of Notes of this series
and of like tenor and authorized denominations, as requested by the Holder
surrendering the same.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple of $1,000 in excess
thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Corporation in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, officer or director, as such, of
the Corporation or of any successor Corporation, either directly or through the
Corporation or any successor Corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
At the option of the Corporation and upon satisfaction of certain
conditions specified in the Indenture, either (a) the Corporation shall be
deemed to have paid and discharged the entire indebtedness on the Notes or (b)
the Corporation need not comply with certain covenants contained in the
Indenture, in each case upon the deposit by the Corporation with the Trustee in
trust for the Holders of the Notes of an amount of funds or obligations issued
or guaranteed by the United States of America sufficient to pay and discharge
upon the stated maturity thereof the entire indebtedness evidenced by the Notes,
all as provided in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of Tennessee.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
5
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ______________ Custodian ______________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
__________________________________
6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________
/____________________________/
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)
________________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
______________________________________________________________________________to
transfer said Note on the books of the Company, with full power of substitution
in the premises.
Dated:_____________________________
Signature Guaranteed
_______________________________________
NOTICE: Signature must be guaranteed NOTICE: The signature to this
by a member firm of the New York Stock assignment must correspond with
Exchange or a commercial bank or trust the name as written upon the face
company. of the within Note in every
particular, without alteration or
enlargement or any change
whatever.
31335.doc.
7