EXHIBIT 4.12
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ARCO CHEMICAL COMPANY
AND
THE BANK OF NEW YORK,
Trustee
-------------------------
INDENTURE
Dated as of June 15, 1988
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of June 15,
1988, between ARCO Chemical Company and The Bank of New York, as Trustee;
Section of Act Section of Indenture
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310(a)(1) and (2)............................ 8.09
310(a)(3) and (4)............................ Not applicable
310(b)....................................... 8.08 and 8.10(b)
310(c)....................................... Not applicable
311(a) and (b)............................... 8.13
311(c)....................................... Not applicable
312(a)....................................... 6.01 and 6.02(a)
312(b) and (c)............................... 6.02(b) and (c)
313(a)....................................... 6.04(a)
313(b)(1).................................... Not applicable
313(b)(2).................................... 6.04(b)
313(c)....................................... 6.04(c)
313(d)....................................... 6.04(d)
314(a)....................................... 6.03
314(b)....................................... Not applicable
314(c)(1) and (2)............................ 16.07
314(c)(3).................................... Not applicable
314(d)....................................... Not applicable
314(e)....................................... 16.07
315(a), (c) and (d).......................... 8.01
315(b)....................................... 7.08
315(e)....................................... 7.09
316(a)(1).................................... 7.01 and 7.07
316(a)(2).................................... Omitted
316(a) last sentence......................... 9.04
316(b)....................................... 7.04
317(a)....................................... 7.02
317(b)....................................... 5.07
318(a)....................................... 16.09
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This tie-sheet is not part of the Indenture as executed.
TABLE OF CONTENTS
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PAGE
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Parties................................................................ 1
Recitals............................................................... 1
ARTICLE ONE.
DEFINITIONS.
Section 1.01. Definitions............................................ 1
Authorized Newspaper................................... 1
Board of Directors..................................... 2
Business Day........................................... 2
Company................................................ 2
Components............................................. 2
Consolidated Net Tangible Assets....................... 3
Conversion Date........................................ 3
Coupon Security........................................ 3
Dollar................................................. 3
ECU.................................................... 3
European Communities................................... 4
Event of Default....................................... 4
Exchange Rate.......................................... 4
Exchange Rate Agent.................................... 5
Exchange Rate Officer's Certificate.................... 5
Foreign Currency....................................... 5
Fully Registered Security.............................. 5
Holder................................................. 5
Indenture.............................................. 5
Interest............................................... 6
Interest Payment Date.................................. 6
Market Exchange Rate................................... 6
Maturity............................................... 7
Officers' Certificate.................................. 7
Opinion of Counsel..................................... 7
Original Issue Date.................................... 7
Original Issue Discount Security....................... 7
Person................................................. 8
Place of Payment....................................... 8
Principal Office of the Trustee........................ 8
Registered Coupon Security............................. 8
Registered Holder...................................... 8
Registered Security.................................... 9
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Required Currency...................................... 9
Responsible Officer.................................... 9
Restricted Property.................................... 9
Restricted Subsidiary.................................. 9
Security or Securities outstanding..................... 10
Stated Maturity........................................ 11
Subsidiary............................................. 11
Trustee................................................ 11
Trustee Indenture Act of 1939.......................... 12
Unregistered Security.................................. 12
ARTICLE TWO.
THE SECURITIES AND SECURITY FORMS.
Section 2.01. Amount Unlimited; Issuance in Series................... 12
Section 2.02. Form of Securities and of Trustee's Certificate
of Authentication.................................... 15
Section 2.03. Denomination, Authentication and Dating Securities..... 15
Section 2.04. Execution of Securities................................ 17
Section 2.05. Registration, Registration of Transfer and Exchange.... 18
Section 2.06. Mutilated, Destroyed, Lost or Stolen Securities........ 19
Section 2.07. Temporary Securities................................... 21
Section 2.08. Cancellation of Securities Paid, etc................... 21
Section 2.09. Moneys of Different Currencies to be Segregated........ 22
Section 2.10. Payment to Be in Proper Currency....................... 22
Section 2.11. Payment in Currencies.................................. 23
ARTICLE THREE.
REDEMPTION OF SECURITIES.
Section 3.01. Applicability of Article............................... 26
Section 3.02. Notice of Redemption; Selection of Securities.......... 26
Section 3.03. Payment of Securities Called for Redemption............ 27
iii
ARTICLE FOUR.
SINKING FUNDS.
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Section 4.01. Applicability of Article............................... 28
Section 4.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities........................................... 29
Section 4.03. Redemption of Securities for Sinking Fund.............. 29
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
Section 5.01. Payment of Principal, Premium and Interest............. 31
Section 5.02. Offices for Notices and Payments, etc.................. 31
Section 5.03. Limitation on Liens.................................... 32
Section 5.04. Limitation on Sale and Lease-Back...................... 34
Section 5.05. Definition of "Value".................................. 35
Section 5.06. Appointments to Fill Vacancies in Trustee's Office..... 35
Section 5.07. Provision as to Paying Agent........................... 35
Section 5.08. Annual Certificate to Trustee.......................... 37
ARTICLE SIX.
HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
Section 6.01. Holders Lists.......................................... 37
Section 6.02. Preservation and Disclosure of Lists................... 37
Section 6.03. Reports by the Company................................. 39
Section 6.04. Reports by the Trustee................................. 40
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT.
Section 7.01. Events of Default...................................... 42
Section 7.02. Payment of Securities on Default; Suit Therefor........ 45
Section 7.03. Application of Moneys Collected by Trustee............. 47
Section 7.04. Proceedings by Holders................................. 48
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Section 7.05. Proceedings by Trustee................................ 50
Section 7.06. Remedies Cumulative and Continuing.................... 50
Section 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders.................................. 50
Section 7.08. Notice of Defaults..................................... 51
Section 7.09. Undertaking to Pay Costs............................... 52
Section 7.10. Judgment Currency...................................... 52
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
Section 8.01. Duties and Reponsibilities of Trustee.................. 53
Section 8.02. Reliance on Documents, Opinions, etc................... 55
Section 8.03. No Responsibility for Recitals, etc.................... 56
Section 8.04. Trustee, Paying Agent or Registrar May Own Securities.. 57
Section 8.05. Moneys to be Held in Trust............................. 57
Section 8.06. Compensation and Expenses of Trustee................... 57
Section 8.07. Officers' Certificate as Evidence...................... 58
Section 8.08. Conflicting Interest of Trustee........................ 58
Section 8.09. Eligibility of Trustee................................. 64
Section 8.10. Resignation or Removal of Trustee...................... 64
Section 8.11. Acceptance by Successor Trustee........................ 66
Section 8.12. Succession by Merger, etc.............................. 68
Section 8.13. Limitation on Rights of Trustee as a Creditor.......... 68
ARTICLE NINE.
CONCERNING THE HOLDERS.
Section 9.01. Action By Holders...................................... 73
Section 9.02. Proof of Execution by Holders.......................... 74
Section 9.03. Who Deemed Absolute Owners............................. 74
Section 9.04. Company-Owned Securities Disregarded................... 75
Section 9.05. Revocation of Consents; Future Holders Bound........... 76
v
ARTICLE TEN.
HOLDERS' MEETINGS.
PAGE
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Section 10.01. Purposes of Meetings................................... 76
Section 10.02. Call of Meetings by Trustee............................ 77
Section 10.03. Call of Meetings by Company or Holders................. 78
Section 10.04. Qualification for Voting............................... 78
Section 10.05. Regulations............................................ 78
Section 10.06. Voting................................................. 79
Section 10.07. No Delay of Rights by Meeting.......................... 80
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
Section 11.01. Supplemental Indentures without Consent of Holders..... 80
Section 11.02. Supplemental Indentures with Consent of Holders of a
Series............................................... 82
Section 11.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.............................. 83
Section 11.04. Notation on Securities................................. 84
Section 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.................................... 84
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE.
Section 12.01. Company May Consolidate, etc., on Certain Terms........ 84
Section 12.02. Securities to be Secured in Certain Events............. 85
Section 12.03. Successor Corporation to be Substituted................ 85
Section 12.04. Opinion of Counsel to be Given Trustee................. 86
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
Section 13.01. Discharge of Indenture................................. 86
Section 13.02. Deposited Moneys to be Held in Trust by Trustee........ 87
Section 13.03. Paying Agent to Repay Moneys Held...................... 88
Section 13.04. Return of Unclaimed Moneys............................. 88
vi
ARTICLE FOURTEEN.
DEFEASANCE.
PAGE
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Section 14.01. Applicability of Article............................. 88
Section 14.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations........................................ 88
Section 14.03. Deposited Moneys and U.S. Government Obligations To
Be held in Trust................................... 91
Section 14.04. Repayment to Company................................. 91
Section 14.05. Reinstatement........................................ 91
ARTICLE FIFTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
Section 15.01. Indenture and Securities Solely Corporate
Obligations........................................ 92
ARTICLE SIXTEEN.
MISCELLANEOUS PROVISIONS.
Section 16.01. Provisions Binding on Company's Successors........... 92
Section 16.02. Benefits of Indenture Restricted to Parties and
Holders............................................ 92
Section 16.03. Official Acts by Successor Corporation............... 92
Section 16.04. Addresses for Notices, etc........................... 93
Section 16.05. Notices to Holders; Waiver........................... 93
Section 16.06. New York Contract.................................... 94
Section 16.07. Evidence of Compliance with Conditions Precedent..... 94
Section 16.08. Legal Holidays....................................... 95
Section 16.09. Trust Indenture Act to Control....................... 95
Section 16.10. No Security Interest Created......................... 95
Section 16.11. Table of Contents, Headings, etc..................... 95
Section 16.12. Execution in Counterparts............................ 95
Section 16.13. Acceptance of Trust.................................. 95
Exhibit A Form of Election To Receive Payments in Foreign
Currency or To Rescind Such Election
1
INDENTURE, dated as of June 15, 1988, between ARCO Chemical Company, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and The Bank of New York, a New York banking corporation (the
"Trustee").
Recital of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities"), as provided herein.
AGREEMENT
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE.
Definitions
Section 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933,
as amended, (except as herein otherwise expressly provided or unless the context
otherwise requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this Indenture.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper of general
circulation in The City of New York (and, if any Place of Payment is not in The
City of New York, in each such Place of Payment) printed in the English language
and customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays. Whenever successive weekly publications in an
Authorized Newspaper are authorized hereunder,
2
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of such Board duly authorized to act for such Board.
Business Day:
The term "Business Day" means any day, other than a Saturday or Sunday,
that is (a) not a day on which banking institutions are authorized or required
by law or regulation to be closed in The City of New York or The City of
Philadelphia or, if a series of Securities is denominated in a Foreign Currency,
the financial center of the country issuing such currency (which, in the case of
European Currency Units, shall be Brussels, Belgium) and (b) if a Security has
an interest rate determined with reference to the London interbank offered rate
for deposits in a particular currency, any day on which dealings in deposits in
such currency are transacted in the London interbank market.
Company:
The term "Company" shall mean ARCO Chemical Company, a Delaware
corporation, and subject to the provisions of Article Twelve shall include its
successors and assigns.
Components:
The term "Components," with respect to Foreign Currency which is a
composite currency (including but not limited to the ECU), means the currency
amounts that are components of such composite currency on the Conversion Date
with respect to such composite currency. If the official unit of any Component
currency is altered by way of combination or subdivision, the number of units of
such currency as a Component shall be proportionately divided or multiplied. If
two or more Component currencies are consolidated into a single currency, the
amounts of those currencies as Components shall be replaced by an amount in such
single currency equal to
3
the sum of the amounts of such consolidated Component currencies expressed in
such single currency, and such amount shall thereafter be a Component. If after
such Conversion Date any Component currency shall be divided into two or more
currencies, the amount of such currency as a Component shall be replaced by
amounts of such two or more currencies, each of which shall be equal to the
amount of such former Component currency divided by the number of currencies
into which such Component currency was divided, and such amounts shall
thereafter be Components.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" shall mean the total amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed), and (b) all goodwill, trade names, trademarks, patents, purchased
technology, unamortized debt discount and other like intangible assets, all as
set forth on the most recent quarterly balance sheet of the Company and its
consolidated Subsidiaries and computed in accordance with generally accepted
accounting principles.
Conversion Date:
The term "Conversion Date," with respect to a Foreign Currency which is
a composite currency (including but not limited to the ECU), has the meaning
specified in Section 2.11(d).
Coupon Security:
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more interest coupons appertaining thereto.
Dollar:
The term "Dollar" or "$" means the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts.
ECU:
The term "ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
4
European Communities:
The term "European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Exchange Rate:
The term "Exchange Rate" means (a) if pursuant to Section 2.11(a)
payment is to be made in Dollars with respect to a Security denominated in a
Foreign Currency, the highest firm bid quotation for Dollars received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date (or, if no such rates
are quoted on such date, the last date on which such rates were quoted), from
three recognized foreign exchange dealers in New York City selected by the
Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer, for settlement on
such payment date, of the aggregate amount of the Foreign Currency payable on
such payment date in respect of all Securities denominated in such Foreign
Currency and (b) if an Exchange Rate is to be computed for purposes of any
provision other than Section 2.11(a), the rate determined pursuant to the
foregoing clause (a) on such date and at such time as may be specified in the
relevant provision.
In the case of clause (a) above, if no such bid quotations are
available, payments pursuant to Section 2.11(a) will be made in the applicable
Foreign Currency, unless such Foreign Currency is unavailable due to the
imposition of exchange controls (or, in the case of a composite currency, such
currency ceases to be used for the purposes for which it was established as
provided in Section 2.11(d)(ii)) or other circumstances beyond the Company's
control, in which case the Company will be entitled to make payments in Dollars
on the basis of the Market Exchange Rate for such Foreign Currency on the second
Business Day prior to such payment date as provided in Section 2.11(d)(i) or
(ii), as applicable.
5
Exchange Rate Agent:
The term "Exchange Rate Agent" means the New York clearing house bank
designated pursuant to Section 2.01, or any successor thereto.
Exchange Rate Officer's Certificate:
The term "Exchange Rate Officer's Certificate," with respect to any date
for the payment of principal of (and premium, if any) and interest on any series
of Securities, means a certificate, signed by an officer of the Exchange Rate
Agent and delivered to the Company and to the Trustee, setting forth the
applicable Exchange Rate as of the second Business Day preceding the applicable
payment date or such other date as provided herein, as the case may be, and the
amounts payable in Dollars on Foreign Currency, as applicable, in respect of the
principal of (and premium, if any) and interest on Securities denominated in
Foreign Currency.
Foreign Currency:
The term "Foreign Currency" means a currency issued by the government of
any country other than the United States of America or a composite currency
based on the aggregate value of currencies of any group of countries, including
but not limited to the ECU.
Fully Registered Security:
The term "Fully Registered Security" shall mean any Security registered
as to principal and interest, if any.
Holder:
The term "Holder," "Holder of Securities," or other similar terms, when
used with respect to any Security shall mean a bearer of an Unregistered
Security or a Registered Holder of a Registered Security and when used with
respect to any coupon, means the bearer thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the form and terms of particular series of
6
Securities established as contemplated hereunder; provided, however, that if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean with respect to any one or more series of Securities for
which such Person is Trustee, this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Securities established as
contemplated by Section 2.01, exclusive, however, of any provisions or terms
which relate solely to one or more series of Securities for which such Person is
not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
Interest:
The term "interest" when used with respect to any series of non-interest
bearing Securities, shall mean interest payable after Maturity.
Interest Payment Date:
The term "Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
Market Exchange Rate:
The term "Market Exchange Rate" means (a) if pursuant to Section 2.11(d)(i)
payment is to be made in Dollars with respect to a Security denominated in a
Foreign Currency (other than a composite currency), the noon buying rate in New
York City for cable transfers of such Foreign Currency as certified by the
Federal Reserve Bank of New York on the second Business Day preceding the
applicable payment date and (b) if pursuant to Section 2.11(d)(ii) payment is to
be made in Dollars with respect to a Security denominated in a composite
currency, for each Component of such composite currency, the Market Exchange
Rate determined pursuant to the foregoing clause (a) on the second Business Day
preceding the applicable payment date.
In the event a Market Exchange Rate as described in clause (a) or (b) above
is not available, the Company will be entitled to make payments in
7
U.S. dollars pursuant to Section 2.11(d)(i) or (ii) on the basis of the most
recently available Market Exchange Rate for such Foreign Currency or each
Component of such composite currency, as the case may be.
Maturity:
The term "Maturity," when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
President and Chief Executive Officer, the Senior Vice President and Chief
Financial Officer, or its Vice President and Treasurer, and by one of its
Assistant Treasurers, its Secretary, an Assistant Secretary, the Controller or
an Assistant Controller of the Company, and delivered to the Trustee. If
applicable, each certificate shall include the statements provided for in
Section 16.07 if and to the extent required by the provisions of such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of, or of counsel to the Company, or may
be other counsel. Each such opinion shall include the statements provided for
in Section 16.07 if and to the extent required by the provisions of such
Section.
Original Issue Date:
The term "original issue date" of any Security (or portion thereof) shall
mean the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean (a) a Security which
has been issued at an issue price lower than the principal amount
8
thereof and which provides that upon redemption or acceleration of the maturity
thereof an amount less than the principal amount thereof shall become due and
payable and (b) any other Security which for United States federal income tax
purposes would be considered an original issue discount security.
Person:
The term "Person" shall mean 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:
The term "Place of Payment" for a series of Securities shall mean the Place
or Places of Payment designated for each series pursuant to Sections 2.01(5) and
5.02.
Principal Office of the Trustee:
The term "Principal Office of the Trustee," or other similar term, shall
mean the principal corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, at which at any particular time its corporate
trust business shall be administered and which on the date hereof is at 21 West
Street, 12th Floor, New York, New York 10286 (except that with respect to
presentation of Securities for payment and transfer, such term shall mean the
office or agency of the Trustee in said city at which at any particular time its
corporate agency business shall be conducted).
Registered Coupon Security:
The term "Registered Coupon Security" shall mean any Coupon Security
registered as to principal only.
Registered Holder:
The term "Registered Holder," when used with respect to a Registered
Security, shall mean the person in whose name such Security is registered on the
books of the Company kept for that purpose in accordance with the terms hereof.
9
Registered Security:
The term "Registered Security" shall mean any Security registered on the
books of the Company.
Required Currency:
The term "Required Currency" means the currency in which the Securities of
any series are payable, as specified by the Company pursuant to Section 2.01(13)
and taking into account any election made by one or more Holders pursuant to
Section 2.11(a). If, however, the Required Currency is a Foreign Currency and
is unavailable for the reasons stated in Section 2.11(d)(i) or (ii), the
Required Currency shall mean Dollars.
Responsible Officer:
The term "Responsible Officer" shall mean any officer to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
Restricted Property:
The term "Restricted Property" shall mean:
(a) any manufacturing plant for the production of oxygenated chemicals or
styrene-based polymers owned by the Company or a Subsidiary and located in the
continental United States of America, except (1) related facilities which in the
opinion of the Board of Directors are transportation or marketing facilities,
and (2) any plant for the production of oxygenated chemicals or styrene-based
polymers which in the opinion of the Board of Directors is not a principal plant
of the Company and its Subsidiaries; and
(b) any shares of capital stock or indebtedness of a Restricted
Subsidiary.
Restricted Subsidiary
The term "Restricted Subsidiary" shall mean any Subsidiary which owns any
Restricted Property, except a Subsidiary substantially all the physical
properties of which are located outside the continental United States of
America.
10
Security or Securities outstanding:
The terms "Security" or "Securities" shall have the meaning stated in the
recital of this Indenture and shall mean any Security or Securities, as the case
may be, authenticated and delivered pursuant to this Indenture (including,
without limitation, the Securities of any series issued in temporary or
permanent global form pursuant to Section 2.01(15)); provided, however, that if
at any time there is more than one Person acting as Trustee under this
instrument, "Securities" with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the recital and shall more
particularly mean Securities authenticated and delivered pursuant to this
instrument, exclusive of Securities of any series as to which such Person is not
Trustee.
The term "outstanding," when used with reference to Securities or
Securities of any series shall, subject to the provisions of Section 9.04, mean,
as of any particular time, all such Securities authenticated and delivered by
the Trustee pursuant to this Indenture, except:
(a) such Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) such Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided that if such Securities are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been mailed as
provided in Article Three, or provision satisfactory to the Trustee shall have
been made for mailing such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section
2.06 except to the extent that a bona fide holder in due course of any such
Securities shall have presented proof satisfactory to the Trustee that such
holder is a bona fide holder in due course of any such Securities.
In determining whether the Holders of the requisite principal amount of
outstanding Securities of a series 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
11
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof determined in accordance with Section
7.01; and (ii) each Security denominated in a Foreign Currency shall be deemed
to have a principal amount determined by the Exchange Rate Agent (as evidenced
by a certificate of such Exchange Rate Agent) by converting the principal amount
of such Security in the currency in which such Security is denominated into
Dollars at the Exchange Rate as of 9:00 A.M., New York City time, on the date
such request, demand, authorization, direction, notice, consent or waiver is
delivered to the Trustee and, where it is hereby expressly required, to the
Company (or, if there is no such rate on such date for the reasons specified in
Section 2.11(d), such rate on the date specified in such Section).
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of interest is due and payable.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of the
outstanding securities of which having ordinary voting power to elect a majority
of the board of directors of such corporation (whether or not any other class of
securities has or might have voting power by reason of the happening of a
contingency) is at the time owned or controlled directly or indirectly by the
Company or one or more Subsidiaries or by the Company and one or more
Subsidiaries.
Trustee:
The term "Trustee" shall mean The Bank of New York, until another or a
successor trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter shall mean and include each Person who is then
a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean only the Trustee with respect to the Securities of that series.
12
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939 as it was in force at the date of execution of this Indenture, except as
provided in Section 11.03.
Unregistered Security:
The term "Unregistered Security" shall mean any Security or temporary
bearer Security not registered as to principal.
ARTICLE TWO.
THE SECURITIES AND SECURITY FORMS.
SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. Securities may be issued in one or more series.
The terms and conditions listed below, as applicable, of any series of
Securities shall be established (i) in an indenture supplemental hereto, (ii) in
a resolution of the Board of Directors or (iii) by the certificate of an officer
of the Company authorized pursuant to a resolution of the Board of Directors:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(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 Sections 2.05, 2.06, 2.07, 3.03 or 11.04);
(3) the date or dates on which the principal and premium, if any, of
the Securities of the series are payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the formula by which interest shall be
calculated, the
13
date or dates from which such interest shall accrue, the interest payment dates
on which such interest shall be payable and the record dates for the
determination of Holders thereof to whom interest is payable;
(5) the place or places where the principal of, and premium, if any, and
any interest on Securities of the series shall be payable (herein called the
"Place of Payment"); provided, however, that payment of principal, premium, if
any, and interest with respect to Registered Securities may be made as provided
in Section 5.02;
(6) the price or prices at which, the period or periods within 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, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount at Stated Maturity 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 7.01 or provable in bankruptcy pursuant to Section 7.02 or used to
determine the relative voting rights of the Holders thereof pursuant to Section
10.05 or the method by which such portion of the principal amount shall be
determined;
(10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(11) if the rate or rate at which the Securities of the series shall
bear interest is to be fixed until Maturity, provisions, if any, for the
defeasance of Securities of the series;
(12) (A) the currency of denomination of the Securities of any series,
which may be in Dollars or any Foreign Currency, (B) if such
14
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such
composite currency and (C) if such Securities are denominated in a
Foreign Currency other than a composite currency, the financial center
of the country issuing such Foreign Currency;
(13) the designation of the currency or currencies in which payment
of the principal of (and premium, if any) and interest on the Securities
of the series will be made, and, if such currency or currencies is a
Foreign Currency, whether payment of the principal (and premium, if any)
or the interest on such Securities shall be payable in such Foreign
Currency or in Dollars, and if in Dollars, whether the Holders thereof
may elect instead to have such payments made in such Foreign Currency;
(14) if the Securities of such series are to be denominated in a
Foreign Currency, the designation of an agent for purposes of
determining the amounts payable with respect to such Securities in
Dollars and exchanging Foreign Currency into Dollars or Dollars into
Foreign Currency, as the case may be (the "Exchange Rate Agent"), which
shall be a New York clearing house bank;
(15) the extent to which any Securities will be issuable in
temporary or permanent global form, and the manner in which any payments
on a temporary or permanent global Security will be made;
(16) the form of Securities of such series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any series issued under this Indenture shall in all
respects be equally and ratably entitled to the benefits hereof with respect to
such series without preference, priority or distinction on account of actual
time or times of authentication and delivery or maturity of the Securities of
such series. All Securities of the same series shall be substantially identical
except as to denomination and except as may otherwise be provided in (i) an
indenture supplemental hereto, (ii) a resolution of the Board of Directors or
(iii) a certificate of an officer of the Company authorized pursuant to a
resolution of the Board of Directors.
15
SECTION 2.02. Form of Securities and of Trustee's Certificate of
Authentication. The Securities of each series, the appurtenant coupons, if any,
and the certificates of authentication thereon shall be in substantially the
form as shall be established as provided in Section 2.01 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
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may be determined consistently
herewith by the officers executing such Securities and coupons, if any, as
evidenced by their execution of the Securities and coupons, if any.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
The form of Trustee's certificate of authentication shall be as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned
Indenture.
as Trustee
By
------------------------------
Authorized Signatory
SECTION 2.03. Denomination, Authentication and Dating of Securities. The
Securities of each series may be issued as Registered Securities or Unregistered
Securities, as provided in the terms of such Securities and shall be issuable in
the denominations of $1,000 and any integral multiple of $1,000, or such other
denominations as authorized as provided in Section 2.01. Each Security shall be
dated as of the date of its authentication.
16
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. Except as otherwise provided in this
Article Two, the Trustee shall thereupon authenticate and deliver said
Securities to or upon the written order of the Company, signed by the President
and Chief Executive Officer, the Senior Vice President and Chief Financial
Officer, its Vice President and Treasurer or one of its Assistant Treasurers. 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 8.01, shall be fully protected in
relying upon:
(a) A copy of the resolution or resolutions of the Board of Directors in
or pursuant to which the terms and form of the Securities were established,
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 as of
the date of such certificate, and if the terms and form of such Securities are
established by an Officers' Certificate pursuant to general authorization of the
Board of Directors, such Officers' Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate delivered in accordance with Section 16.07;
and
(d) an Opinion of Counsel which shall state:
(1) that the form of such Securities has been established by a
supplemental indenture or by or pursuant to a resolution of the Board of
Directors in accordance with Sections 2.01 and 2.02 and in conformity
with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
accordance with Section 2.01 and in conformity with the other provisions
of this Indenture;
(3) 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
17
with their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles; and
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees or vice presidents shall determine that such
action would expose the Trustee to personal liability to existing Holders.
SECTION 2.04. Execution of Securities. The Securities, and any coupons
appertaining thereto, shall be signed in the name and on behalf of the Company
manually or by facsimile by its President and Chief Executive Officer or its
Senior Vice President and Chief Financial Officer and by its Vice President and
Treasurer, its Secretary or one of its Assistant Secretaries, under its
corporate seal (which may be printed, engraved or otherwise reproduced thereon,
by facsimile or otherwise). Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security or coupon may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such
Securities or coupons, shall be the proper officers of the Company, although at
the date of the execution of this Indenture any such person was not such an
officer.
18
SECTION 2.05. Registration, Registration of Transfer and Exchange. The
Company shall keep or cause to be kept a register (herein sometimes referred to
as the "registry books of the Company") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and the registration of transfers of Registered
Securities. Any such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times the information contained in such register or registers shall
be available for inspection by the Trustee at the office or agency to be
maintained by the Company as provided in Section 5.02.
Upon surrender of any Registered Security of any series for registration
of transfer at the office or agency of the Company to be maintained as provided
in Section 5.02, the Company shall execute, and the Trustee, upon the written
authorization or request of any officer of the Company, shall authenticate and
deliver, in the name of the designated transferee or transferees, at the expense
of the Company, one or more new Registered Securities of such series of any
authorized denominations and of a like aggregate principal amount and Stated
Maturity.
At the option of the Holder thereof, Securities of a series, whether
Registered or Unregistered, which by their terms are registrable as to principal
only or as to principal and interest, may be exchanged for Registered Coupon
Securities or Fully Registered Securities of such series, as may be issued by
the terms thereof. Securities so issued in exchange for other Securities shall
be of any authorized denomination and of like principal amount and Stated
Maturity and shall be issued upon surrender of the Securities for which they are
to be exchanged and, in the case of Coupon Securities, together with all
unmatured coupons and all matured coupons in default appertaining thereto, at
the office of the Company provided for in Section 5.02 and upon payment, if the
Company shall require, of charges provided herein. Whenever any Securities are
so surrendered, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making such exchange is entitled to
receive.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 5.02, such
Security shall be registered as to principal in the name of the Holder thereof
and such
19
registration shall be noted on such Security. Any Security so registered shall
be transferable on the registry books of the Company, upon presentation of such
Security at such office or agency for similar notation thereon, but such
Security may be discharged from registration by being in like manner transferred
to bearer, whereupon transferability by delivery shall be restored. Unregistered
Securities shall continue to be subject to successive registrations and
discharges from registration at the option of the Holders thereof.
Unregistered Securities shall be transferable by delivery. Registration
of any Coupon Security shall not affect the transferability by delivery of the
coupons appertaining thereto which shall continue to be payable to bearer and
transferable by delivery.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or 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 duly executed, by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, 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 relation
thereto.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Securities of any series for a period of 15 days next preceding
any selection of Securities of such series to be redeemed, or (ii) to register
the transfer or exchange of any Securities so selected for redemption in whole
or in part except, in the case of any Security to be redeemed in part, the
portion thereof not to be so redeemed.
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security or any coupon appurtenant to a Coupon
Security shall become mutilated or be destroyed, lost or stolen, the Company
20
in its discretion may execute, and upon written authorization or request of any
officer of the Company, the Trustee shall authenticate and deliver, a new
Security (in the case of a Coupon Security, with coupons corresponding to the
coupons appertaining to the mutilated, destroyed, lost or stolen Security or the
Security with respect to which a coupon shall have become mutilated, destroyed,
stolen or lost) of the same series and of like tenor and principal amount at
Stated Maturity bearing a number not contemporaneously outstanding. In every
case the applicant for a substituted Security shall furnish to each of the
Company and the Trustee such security or indemnity as may be required by either
of them, as the case may be, to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Company
and to the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof. In every case of
mutilation, the applicant shall surrender to the Trustee, the mutilated Security
or the Security to which the mutilated coupon appertains, in the case of a
Coupon Security, with all coupons (including any mutilated coupons) appertaining
thereto.
Upon the issuance of any substituted Security, 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 connected
therewith. In case any Security or coupon which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security or coupon, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to each of
the Company and the Trustee such security or indemnity as may be required by
either of them, as the case may be, to save each of them harmless and, in case
of destruction, loss or theft, evidence satisfactory to the Company and the
Trustee of the destruction, loss or theft of such Security or coupon and of the
ownership thereof.
Every substituted Security, and in the case of Coupon Securities, its
appurtenant coupons, issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any Security or coupon of that series is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security or coupon of that series
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
21
Securities and coupons of that series duly issue hereunder. All Securities and
coupons shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities and
coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.07. Temporary Securities. Pending the preparation of
definitive Securities of any series the Company may execute and the Trustee,
upon satisfaction of the provisions of Section 2.03, shall authenticate and
deliver printed or lithographed temporary Securities. Temporary Securities shall
be issuable in any authorized denomination, and substantially in the form of the
definitive Securities of that series, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every such temporary Security of any series shall be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Securities of that
series. Without unreasonable delay, the Company will execute and deliver to the
Trustee definitive Securities of that series and thereupon any or all temporary
Securities of that series may be surrendered in exchange therefor, at the office
or agency of the Company in the Place of Payment for such series, and the
Company shall execute and the Trustee shall authenticate and deliver in exchange
for such temporary Securities an equal aggregate principal amount at Stated
Maturity of definitive Securities. Such exchange shall be made by the Company at
its own expense and without any charge therefor except that the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. 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 that series
authenticated and delivered hereunder.
Section 2.08. Cancellation of Securities Paid, etc. Securities of any
series surrendered for the purpose of payment, redemption, exchange or
registration of transfer and all coupons surrendered for payment, shall, if
surrendered to the Company or any paying agent, be surrendered to the Trustee
for cancellation, or, if surrendered to the Trustee, shall be cancelled
22
by it, and no Securities or coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture or of such series
of Securities. The Trustee shall destroy or otherwise dispose of, at its
discretion, cancelled Securities or coupons and, where applicable, deliver a
certificate of such destruction to the Company. If the Company shall acquire any
of the Securities or coupons, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities or
coupons unless and until the same are surrendered to the Trustee for
cancellation.
Section 2.09. Moneys of Different Currencies to be Segregated. The
Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any money, funds or accounts in any other
currencies, notwithstanding any provision herein which would otherwise permit
the Trustee to commingle such amounts.
Section 2.10. Payment to Be in Proper Currency. The obligation of the
Company to make any payment of principal of (and premium, if any) and interest
on any Security shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, and the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor. The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the full amount
of Required Currency then due and payable.
Any costs incurred by or on behalf of the Company (other than costs
incurred by the Trustee that are passed on to the Company as provided above) in
connection with the conversion of Dollars to any Foreign Currency pursuant to an
election made by a Holder in accordance with
23
Section 2.11(a) shall be borne by the Holder making such an election through
deduction from payments required to be made to such Holder pursuant to the terms
of this Indenture.
Section 2.11. Payment in Currencies. (a) Payment of the principal of
(and premium, if any) and interest on the Securities of any series, whether or
not denominated in a Foreign Currency pursuant to Section 2.01(12), shall be
made in Dollars, unless the Company specifies another currency or currencies
pursuant to Section 2.01(13). If a series of Securities is denominated in a
Foreign Currency, the amount receivable in Dollars by the Holders of such series
shall be determined as provided in Section 2.11(c). Not later than one Business
Day prior to each Interest Payment Date, the Trustee shall inform the Company of
the total amount of the interest payments to be made by the Company on such
Interest Payment Date and the currencies or currency units in which such
interest payments are to be made. The Trustee shall provide monthly to the
Company a list of the principal and interest to be paid on Securities of each
series maturing in the next succeeding month.
(b) If authorized pursuant to Section 2.01(13), any Holder of a Security
of a series of Securities denominated in Foreign Currency may elect to receive
payments in the Foreign Currency in which such Security is denominated pursuant
to Section 2.01(12). A Holder may make such election by delivering to the
Trustee: (i) a written notice thereof, substantially in the form attached hereto
as Exhibit A or in such other form as may be acceptable to the Trustee, not
later than the close of business on the record date immediately preceding the
applicable Interest Payment Date or the fifteenth day immediately preceding the
Maturity of an installment of principal, as the case may be, and (ii) wire
transfer instructions as required by Section 5.02. Such election shall remain in
effect with respect to such Holder until such Holder delivers to the Trustee a
written notice rescinding such election, provided, however, that any such notice
must be delivered to the Trustee not later than the close of business on the
record date immediately preceding the next Interest Payment Date or the
fifteenth day immediately preceding the Maturity of an installment of principal,
as the case may be, in order to be effective for the payment to be made thereon;
and provided further that no such recission may be made with respect to payments
to be made on any Security with respect to which notice of redemption has been
given by the Company pursuant to Article Three. The
24
Trustee shall deliver a copy of each notice received by it under this Section
2.11(b) to the Exchange Rate Agent and the Company as soon as practicable after
receipt. Upon request, the Trustee will mail a copy of the form of Exhibit A to
any Holder requesting a copy thereof to the address of such Holder set forth in
such request.
(c) For each series of Securities denominated in a Foreign Currency, the
Exchange Rate Agent shall determine the amount receivable by the Holders thereof
in Dollars, which amount shall equal the sum obtained by converting the
applicable Foreign Currency into Dollars at the Exchange Rate. The applicable
Exchange Rate shall be set forth in an Exchange Rate Officer's Certificate. The
Exchange Rate Agent shall deliver to the Company and to the Trustee, not later
than one Business Day prior to the date each payment is required to be made, a
written notice specifying the amount of principal of (and premium, if any) and
interest on such series of Securities to be paid on such payment date in Dollars
and, if at least one Holder has made the election referred to in subsection (b)
above to receive payments in Foreign Currency on a series of Securities
denominated in a Foreign Currency, such Foreign Currency, together with a
counterpart of the Exchange Rate Officer's Certificate, referred to above.
(d)(i) If a Foreign Currency, other than a composite currency, in which
the payment of principal of (and premium, if any) and interest on a series of
Securities is required to be made is not available to the Company due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, then with respect to each payment date occurring after the last date on
which such Foreign Currency was so used, all payments with respect to the
Securities of any such series shall be made in Dollars. If payment is to be made
in Dollars to the Holders of any such series of Securities pursuant to the
provisions of the preceding sentence, then the amount to be paid in Dollars on a
payment date by the Company to the Trustee and by the Trustee or any paying
agent to Holders shall be determined by the Exchange Rate Agent and shall be
equal to the sum obtained by converting the applicable Foreign Currency into
Dollars at the applicable Market Exchange Rate set forth in an Exchange Rate
Officer's Certificate.
(ii) If the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of or
25
within the European Communities or is not available due to circumstances beyond
the control of the Company, or if any other composite currency in which the
payment of principal of (and premium, if any) and interest on a series of
Securities is required to be made ceases to be used for the purposes for which
it was established or is not available due to circumstances beyond the control
of the Company, then with respect to each payment date (the "Conversion Date")
occurring after the last date on which the ECU or such other composite currency
was so used, all payments with respect to the Securities of any such series
shall be made in Dollars. If payment with respect to Securities of a series is
to be made in Dollars pursuant to the provisions of the preceding sentence, then
the amount to be paid in Dollars on a payment date by the Company to the Trustee
and by the Trustee or any paying agent to Holders shall be determined by the
Exchange Rate Agent and shall be equal to the sum of the amounts obtained by
converting each Component of such composite currency into Dollars at its
respective Market Exchange Rate set forth in an Exchange Rate Officer's
Certificate, multiplied by the number of ECU or units of such other composite
currency, as appropriate, that would have been so paid had the ECU or such other
composite currency, as appropriate, not ceased to be so used.
(e) All decisions and determinations of the Exchange Rate Agent
regarding the Exchange Rate or conversion of Foreign Currency other than a
composite currency into Dollars pursuant to subsection (d)(i) above or the
conversion of ECU or any other composite currency into Dollars pursuant to
subsection (d)(ii) shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Company, the Trustee, any paying
agent and all Holders of the Securities. If a Foreign Currency, other than a
composite currency, in which payment of the principal of (and premium, if any)
and interest on a series of Securities is required pursuant to subsection (a)
above, is not available to the Company for making payments thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, the Company, after learning thereof, will give notice thereof to the
Trustee immediately (and the Trustee promptly thereafter will give notice to the
Holders in the manner provided in Section 16.05) specifying the last date on
which such Foreign Currency was used for the payment of principal of (and
premium, if any) or interest on such series of Securities. In the event the ECU
ceases to be used both within the European Monetary System and for the
settlement of
26
transactions by public institutions of or within the European Communities or is
not available due to circumstances beyond the control of the Company, or any
other composite currency in which the principal of (and premium, if any) and
interest on a series of Securities is required ceases to be used for the
purposes for which it was established or is not available due to circumstances
beyond the control of the Company, the Company, after learning thereof, will
give notice thereof to the Trustee immediately (and the Trustee promptly
thereafter will give notice to the Holders in the manner provided in Section
16.05). In the event of any subsequent change in any Component, the Company,
after learning thereof, will give notice to the Trustee similarly (and the
Trustee promptly thereafter will give notice to the Holders in the manner
provided in Section 16.05). The Trustee shall be fully justified and protected
in relying and acting upon the information so received by it from the Company
and shall not otherwise have any duty or obligation to determine such
information independently.
ARTICLE THREE.
Redemption of Securities.
Section 3.01. Applicability of Article. The Company may reserve the
right to redeem and pay, prior to Stated Maturity, all or any part of the
Securities of any series, either by optional redemption, sinking fund or
otherwise, by provision therefor in the Security for such series established
pursuant to Sections 2.01 and 2.02. Redemption of Securities of any series shall
be made in accordance with the terms of such Securities and, to the extent that
this Article does not conflict with such terms, in accordance with this Article.
Section 3.02. Notice of Redemption; Selection of Securities. In case
the Company shall desire to exercise the right to redeem all or any part of the
Securities of a series in accordance with their terms, it shall fix a date for
redemption and shall mail a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to each Holder of a
Registered Security to be redeemed as a whole or in part at his address as the
same appear on the registry books of the Company and, if Unregistered Securities
are to be redeemed, shall publish a notice of redemption at least 30 and not
more than 60 days prior to the date fixed for redemption in an
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Authorized Newspaper in the Place of Payment. If mailed in the manner herein
provided, the notice shall be conclusively presumed to have been duly given,
whether or not any such Holder receives such notice. Any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price, the place where such Securities are to be
surrendered for payment of the redemption price, which shall be the office or
agency of the Company in each Place of Payment, that payment will be made upon
presentation and surrender of such Securities and all coupons appertaining
thereto, if any, that accrued interest, if any, to the redemption date will be
paid as specified in said notice, and that on and after said date, interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
the redemption is on account of a sinking fund, said notice shall so specify. If
less than all the outstanding Securities of a series are to be redeemed, the
notice of redemption shall specify the numbers of the Securities of that series
to be redeemed. In case any Security of a series is to be redeemed in part only,
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of that series in
the principal amount and Stated Maturity equal to the unredeemed portion
thereof will be issued.
If fewer than all the Securities of a series are to be redeemed, the
Company shall give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount at Stated Maturity of
Securities to be redeemed, and the Trustee shall select from the Securities
outstanding in such manner as in its sole discretion it shall deem appropriate
and fair, the Securities of that series or portions thereof to be redeemed.
Securities of a series may be redeemed in part only in multiples of $1,000,
except as otherwise set forth in the form of Security to be redeemed.
Any notice of redemption to be mailed by the Company pursuant to this
Section 3.02 may be mailed, at the Company's direction, by the Trustee in the
name and at the expense of the Company.
Section 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been mailed or published, as the case may be as above
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provided, the Securities or portions of Securities of a series with respect to
which such notice has been mailed or published shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with accrued interest to the redemption date and on
and after said date (unless the Company shall default in the payment of such
Securities at the applicable redemption price, together with accrued interest,
if any, to said date) any interest on the Securities or portions of Securities
of any series so called for redemption shall cease to accrue, and such
Securities and portions of Securities of any series shall be deemed not to be
outstanding hereunder and shall not be entitled to any benefit under this
Indenture except to receive payment of the redemption price, together with
accrued interest, if any, to the date fixed for redemption. On or before the
Business day preceding the redemption date specified in the notice of
redemption, the Company shall deposit with the Trustee or with one or more
paying agents an amount of money, in immediately available funds, sufficient to
redeem on the redemption date all the Securities so called for redemption at the
applicable redemption price, together with accrued interest, if any, to the date
fixed for redemption. On presentation and surrender of such Securities at the
Place of Payment, the said Securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable redemption price, together
with accrued interest, if any, to the date fixed for redemption.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of such
series, of authorized denominations in aggregate principal amount and Stated
Maturity equal to the unredeemed portion of the Security so presented.
ARTICLE FOUR.
Sinking Funds.
Section 4.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of
series except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
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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 any series is herein referred to as an "optional sinking
fund payment."
Section 4.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
Section 4.03. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 4.02,
which Securities will accompany such certificate, if not theretofore delivered,
and whether the Company intends to exercise its right to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall also state that no Event of Default with respect to such series has
occurred and is continuing.
Any mandatory or optional sinking fund payment or payments made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $50,000 or an equivalent amount, if applicable, in a
Foreign Currency (or a lesser sum if the Company shall so request) with respect
to Securities of any particular series shall be applied by
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the Trustee on the sinking fund payment date on which such payment is made (or,
if such payment is made prior to a sinking fund payment date, on the sinking
fund payment date following the date of such payment) to the redemption of such
Securities at the redemption price specified in such Securities for operation of
the sinking fund together with accrued interest to the date fixed for
redemption. Any sinking fund moneys not so applied or allocated by the Trustee
to the redemption of Securities shall be added to the next cash sinking fund
payment received by the Trustee for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 4.03. Any and
all sinking fund moneys with respect to the Securities of any particular series
held by the Trustee on the last sinking fund payment date with respect to such
Securities, and not held for the payment or redemption of particular Securities,
shall be applied by the Trustee, to the payment of the principal of the
Securities of that series at maturity.
The Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in the penultimate paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in section 3.02. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
On each sinking fund payment dte, the Company shall pay to the Trustee
in immediately available funds a sum equal to all accrued interest to the date
fixed for redemption on Securities to be redeemed on such sinking fund payment
date pursuant to this Section 4.03.
The Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail or publish any notice of redemption of such Securities by
operation of the sinking fund for such series during the continuance of a
default in payment of interest on such Securities or of any Event of Default
(other than an Event of Default occurring as a consequence of this paragraph),
except that if the notice of redemption of any such Securities shall theretofore
have been mailed or published in accordance with the provisions hereof, the
Trustee shall redeem Securities if cash sufficient for that purpose shall be
deposited with the Trustee for that purpose in accordance with the terms of this
Article Four. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default
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or Event of Default shall occur and any moneys thereafter paid into such sinking
fund shall, during the continuance of such default or Event of Default, be held
as security for the payment of all Securities of such series; provided, however,
that in case such default or Event or Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on the next sinking
fund payment date for such Securities on which such moneys may be applied
pursuant to the provisions of this Section 4.03.
ARTICLE FIVE
Particular Covenants of the Company.
Section 5.01. Payment of Principal, Premium and Interest. The Company
shall duly and punctually pay or cause to be paid the principal of and premium,
if any, and interest, if any, on the Securities of each series in the Required
Currency in accordance with the terms thereof and this Indenture and shall
comply with all other forms, agreements and conditions contained in or made in
this Indenture for the benefit of such Securities.
Section 5.02. Offices for Notices and Payments, etc. So long as any
Securities of a series remain outstanding, the Company shall maintain in each
Place of Payment for such series of Securities an office or agency where the
Securities of that series may be presented for payment, for registration of
transfer and for exchange as provided in this Indenture and where notices and
demands to or upon the Company in respect of the Securities of that series or of
this Indenture may be served. The Company shall give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. In case the Company shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made at the Principal Office
of the Trustee (or at any other address previously furnished in writing to the
Company by the Trustee) and notices may be served at the Principal Office of the
Trustee. Unless otherwise provided pursuant to Section 2.01, the Company hereby
initially designates as the Place of Payment for each series of Securities, the
Borough of Manhattan, The City of New York, and initially appoints the Trustee
its agent for payment, for registration of transfers, for exchange of the
Securities and where notices and demands may be served upon the Company.
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Notwithstanding any other provisions to the contrary, the Company at its option
may make payment of principal, premium (if any) and interest with respect to
Registered Securities by check mailed to the address of the Person entitled
thereto, as such address appears on the registry books of the Company; provided,
however, that in the case of a Registered Security issued between a record date
and the initial Interest Payment Date relating to such record date, interest for
the period beginning on the Original Issue Date and ending on such initial
Interest Payment Date shall be paid on such initial Interest Payment Date to the
person to whom such Registered Security shall have been originally issued.
Notwithstanding the foregoing, a holder of U.S. $10,000,000 or more in aggregate
principal amount of Registered Securities (or a holder of the equivalent thereof
in a Foreign Currency) shall be entitled to receive such payments in Dollars by
wire transfer of immediately available funds, but only if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
fifteen days prior to the applicable Interest Payment Date. Simultaneously with
the election by any holder to receive payments in a Foreign Currency as provided
in Section 2.11, such holder shall provide appropriate wire transfer
instructions to the Trustee, and all such payments will be made by wire transfer
of immediately available funds to an account maintained by the payee with a bank
located outside the United States.
Section 5.03. Limitation on Liens. Nothing in this Indenture or in the
Securities shall in any way restrict or prevent the Company or any Subsidiary
from incurring any indebtedness; provided, however, that neither the Company nor
any Restricted Subsidiary shall issue, assume or guarantee, any notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed (notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
being hereinafter in this Article Five called "Debt") secured by mortgage, lien,
pledge or other encumbrance (mortgages, liens, pledges or other encumbrances
being hereinafter in this Article Five called "Mortgages") upon any Restricted
Property, without effectively providing that the Securities of each series then
outstanding and thereafter created (together with, if the Company so determines,
any other indebtedness or obligation then existing and any other indebtedness
or obligation thereafter created ranking equally with the Securities then
existing or thereafter created which is not subordinated to the Securities of
each series) shall be secured equally and ratably with (or prior to) such
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Debt so long as such Debt shall be so secured, except that the foregoing
provisions shall not apply to:
(a) Mortgages affecting property of a corporation existing at the time
it becomes a Subsidiary or at the time it is merged into or consolidated with
the Company or a Subsidiary;
(b) Mortgages on property existing at the time of acquisition thereof or
incurred to secure payment of all or part of the purchase price thereof or to
secure Debt incurred prior to, at the time of or within 24 months after
acquisition thereof for the purpose of financing all or part of the purchase
price thereof;
(c) Mortgages on any property to secure all or part of the cost of
construction or improvements thereon or Debt incurred to provide funds for any
such purpose in a principal amount not exceeding the cost of such construction
or improvements;
(d) Mortgages which secure only an indebtedness owing by a Subsidiary to
the Company or a Subsidiary;
(e) Mortgages in favor of the United States or any state thereof, or any
department, agency, instrumentality, or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or cost of constructing or
improving the property subject thereto, including, without limitation, Mortgages
to secure Debt of the pollution control or industrial revenue bond type; or
(f) Mortgages required by any contract or statute in order to permit the
Company or a Subsidiary to perform any contract or subcontract made by it with
or at the request of the United States of America, any state or any department,
agency or instrumentality or political subdivision of either;
(g) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Mortgage referred to in
the foregoing clauses (a) to (f) inclusive or of any Debt secured thereby,
provided that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
34
Mortgage shall be limited to all or part of substantially the same property
which secured the Mortgage extended, renewed or replaced (plus improvements on
such property).
Notwithstanding the foregoing provisions of this Section 5.03, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by Mortgages which would otherwise be subject to the
foregoing restrictions in an aggregate principal amount which, together with the
aggregate outstanding principal amount of all other Debt of the Company and its
Restricted Subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (a) to
(g) inclusive above) and the aggregate Value, as defined in Section 5.05, of the
Sale and Lease-Back Transactions, as defined in Section 5.04, in existence at
such time (not including Sale and Lease-Back Transactions as to which the
Company has complied with Section 5.04(b)), does not at any one time exceed 10%
of the Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries.
Section 5.04. Limitation on Sale and Lease-Back. Neither the Company nor
any Restricted Subsidiary shall enter into any arrangement with any Person
(other than the Company or a Subsidiary), or to which any such Person is a
party, providing for the leasing to the Company or a Restricted Subsidiary for a
period of more than three years of any Restricted Property which has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person or to any other Person (other than the Company or a Subsidiary), to which
funds have been or are to be advanced by such Person on the security of the
leased property (in this Article Five called "Sale and Lease-Back
Transactions") unless either:
(a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 5.03, to incur Debt in a principal amount
equal to or exceeding the Value of such Sale and Lease-Back Transaction, secured
by a Mortgage on the property to be leased, without equally and ratably securing
the Securities; or
(b) the Company (and in any such case the Company covenants and agrees
that it will do so) during or immediately after the expiration of four months
after the effective date of such Sale and Lease-Back Transaction (whether made
by the Company or a Restricted Subsidiary) applies to the voluntary retirement
of indebtedness of the Company (including Securities,
35
provided that Securities may only be redeemed at the redemption prices and in
accordance with the other provisions of the form thereof), maturing by the terms
thereof more than one year after the original creation thereof and ranking at
least pari passu with the Securities (hereinafter in this Section called "Funded
Debt") an amount equal to the Value of such Sale and Lease-Back Transaction,
less the principal amount of Securities delivered, within four months after the
effective date of such arrangement, to the Trustee for retirement and
cancellation and the principal amount of other Funded Debt voluntarily retired
by the Company within such four-month period, excluding retirements of
Securities and other Funded Debt as a result of conversions or pursuant to
mandatory sinking fund or prepayment provisions or by payment at maturity.
SECTION 5.05. Definition of "Value." For purposes of Sections 5.03 and
5.04, the term "Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds of the sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction or (2) the fair value, in the opinion of the
Board of Directors, of such property at the time of entering into such Sale and
Lease-Back Transaction, in either case divided first by the number of full years
of the term of the lease and then multiplied by the number of full years of
such term remaining at the time of determination, without regard to any renewal
or extension options contained in the lease.
SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee
for any one or more series of Securities, shall appoint a Trustee, in the manner
provided in Section 8.10 so that there shall at all times be a Trustee with
respect to each series of Securities hereunder.
SECTION 5.07. Provision as to Paying Agent. (a) If the Company appoints
a paying agent other than the Trustee with respect to the Securities of any
series, it shall cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.07:
(1) that it will hold all sums held by it as such agent for the payment
of the principal of and premium, if any, or interest, if any, on the Securities
of such series (whether such sums have been paid to it by the Company or by
36
any other obligor on the Securities of such series) in trust for the benefit of
the Holders of the Securities of such series; and
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of and premium, if any, or interest, if any, on the Securities
of such series when the same shall be due and payable.
(b) If the Company acts as its own paying agent with respect to the
Securities of any series it shall, on or prior to each due date of the principal
of and premium, if any, or interest, if any, on any of the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of
such Securities or the coupons appertaining thereto, as the case may be, a sum
sufficient to pay such principal and premium, if any, or interest, if any, so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor under such Securities) to
make any payment of the principal of and premium, if any, or interest, if any,
on such Securities when the same shall become due and payable.
(c) Whenever the Company has one or more paying agents with respect to
the Securities of any series, it shall deposit with a paying agent (who shall
make any necessary funds available to any other paying agents), on the Business
Day next preceding each due date in funds available on the due date of the
principal of, premium, if any, and interest, if any, on such Securities, a sum
in immediately available funds sufficient to pay such principal, premium, if
any, and interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Holders of such Securities or the coupons appertaining thereto,
as the case may be, entitled to any such principal, premium and interest, and
(unless such paying agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
(d) Anything in this Section 5.07 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 5.07, such sums to be held by the Trustee upon the
trusts herein contained.
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(e) Anything in this Section 5.07 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.07 is subject to
Sections 13.03 and 13.04.
SECTION 5.08. Annual Certificate to Trustee. The Company shall deliver
to the Trustee on or before September 1 in each year during which any Securities
are outstanding hereunder (beginning with respect to Securities of each series
with the September 1 next following the issue date of any series of Securities)
an Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company and based upon a review made
under their supervision of the activities of the Company they would normally
have knowledge of any default by the Company in the performance of any covenants
contained in Sections 5.03, 5.04, 12.01 or 12.02, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
ARTICLE SIX.
HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. Holders Lists. The Company shall furnish or cause to be
furnished to the Trustee, with respect to the Registered Securities of each
series (i) semi-annually, not later than each Interest Payment Date for such
series and on dates to be determined pursuant to Section 2.01 for non-interest
bearing Securities in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders, as of the
respective record dates therefor, and on dates to be determined pursuant to
Section 2.01 for non-interest bearing Securities, and (ii) at such other times
as the Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders as of a date not more than 15
days prior to the time such information is furnished; provided, however, that so
long as the Trustee shall be the registrar of a series of Securities all of
which are Registered Securities, such list shall not be required to be furnished
in respect of that series.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
38
information as to the names and addresses of the Holders of Registered
Securities of any series contained in the most recent list furnished to it as
provided in Section 6.01 or received by the Trustee in its capacity as
Securities registrar. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of the same series
(hereinafter 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 or with Holders of
Securities of all series with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit for such purpose, then
the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 6.02, or
(2) inform such applicants as to the approximate number of Holders
of Securities of such series or of all series, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 6.02 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 a Security of such series or of all series, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 6.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material
39
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all series, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If said 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 entry of an order
sustaining one or more of such objections, said 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) Each Holder of any Security or coupon or both, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held accountable by reason
of the disclosure of the name and address of such Holder in accordance with the
provisions of subsection (b) of this Section 6.02, 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
said subsection (b).
SECTION 6.03. Reports by the Company. (a) The Company shall file with
the Trustee, within 15 days after the Company is required to file the same with
the Securities and Exchange Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and regulations
prescribe) relating to the equity or debt securities of the Company which the
Company may be required to file with said Commission pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and said Commission, in accordance with
rules and regulations prescribed from time to time by said 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.
40
(b) The Company shall file with the Trustee and the Securities and
Exchange Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Company shall transmit by mail to each Holder of Securities, in
the manner and to the extent provided in Section 6.04, 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 subsections (a) and
(b) of this Section 6.03 as may be required by rules and regulations
prescribed from time to time by the Securities and Exchange Commission.
SECTION 6.04. Reports by the Trustee. (a) On or before December 15 in
every year after the first series of Securities is issued hereunder, so long as
any Securities are outstanding hereunder, the Trustee shall transmit to the
Holders, as hereinafter in this Section 6.04 provided, a brief report dated as
of the preceding October 15 with respect to:
(1) its eligibility under Section 8.09 and its qualification under
Section 8.08 or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written statement
to such effect;
(2) the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount at Stated Maturity of the Securities outstanding on the
date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities) to
the Trustee in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising
41
in any manner described in paragraphs (2), (3), (4) or (6) of subsection (b) of
Section 8.13;
(4) the property and funds, if any, physically in the possession of the
Trustee, as such, on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects any of the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance with
the provisions of Section 7.08.
(b) The Trustee shall transmit to the Holders, as hereinafter provided,
a brief report with respect to the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such), since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this Section 6.04
(or, if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities, on property or funds held or
collected by it as Trustee, and which it has not previously reported pursuant to
this subsection, except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of Securities at Stated Maturity outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Registered Holders of Securities, as the names and addresses
of such Holders appear in the registry books of the Company;
(2) to such Holders of Securities as have, within two years preceding
such transmission, filed their names and addresses with the Trustee for that
purpose; and
(3) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder whose name and address is preserved at the time by the
Trustee, as provided in Section 6.02.
42
(d) 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 the
Securities are listed and also with the Securities and Exchange Commission. The
Company shall notify the Trustee when any Securities are listed on any stock
exchange.
ARTICLE SEVEN.
Remedies of the Trustee and Holders
on Event of Default.
Section 7.01. Events of Default. "Event of Default," whenever used
herein with respect to Securities of any series means each one of the following
events unless it is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture under which such
series of Securities is issued, if any, or in the form of Security for such
series:
(a) default in the payment of any installment of interest upon any
Security of that series when the same becomes due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Securities of that series as and when the same shall become due and payable
either at Maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment or analogous
obligation as and when the same shall become due and payable by the terms of
that series, and continuance of such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture (other than a covenant or
agreement in respect of the Securities of such series a default in the
performance of which or the breach of which is elsewhere in this Section 7.01
specifically provided for or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than such
series), and continuance of such default or breach for a period of 90
43
days after the date on which written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the Trustee, or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount at Stated Maturity of the Securities of that series at the time
outstanding; or
(e) if there shall be entered a decree or order by a court having
jurisdiction for relief in respect of the Company under any applicable Federal
or State bankruptcy law or other similar law, or appointing a receiver, trustee
or liquidator, 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 90 consecutive days; or
(f) if the Company shall file a petition or an answer or consent seeking
relief under any applicable Federal or State bankruptcy law or other similar
law, or shall consent to the institution of proceedings thereunder or to the
filing of any such petition or to the appointment or taking possession by a
receiver, trustee, custodian or other similar official of the Company or of any
substantial part of its property, or the Company shall make an assignment for
the benefit of creditors generally or shall admit in writing to its inability to
pay its debts generally as they become due; or
(g) any other event provided in the form of Security for such series, or
in the supplemental indenture, Officers' Certificate or resolution of the Board
of Directors under which such series of Securities is issued, if any.
If an Event of Default described in clauses (a), (b), (c) or (g) with respect to
Securities of any series at the time outstanding occurs and is continuing, then
and in each and every such case, unless the principal of all the Securities of
such series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount at Stated Maturity of
the Securities of such series then outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders), may declare the
principal amount (in the case of Securities that are Original Issue Discount
Securities, such principal amount as may be determined in accordance with the
terms of that series) of all the Securities of such series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and
44
payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. If an Event of Default described in
clauses (d), (e) or (f) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount at Stated Maturity of all the Securities then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the principal amount as
may be determined in accordance with the terms of that series) of all the
Securities to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. The
foregoing provisions are, however, subject to the condition that if, at any time
after the principal amount (in the case of Securities that are Original Issue
Discount Securities, such portion of the principal amount as may be determined
in accordance with the terms of that series) of the Securities of any series or
of all the Securities, as the case may be, shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series or of all of the
Securities, as the case may be, and the principal of and premium, if any, on all
Securities of such series or of all the Securities, as the case may be, which
shall have become due otherwise than by acceleration (with interest on overdue
installments of interest, to the extent that payment of such interest is
enforceable under applicable law, and on such principal and premium, if any, at
the rate of interest or yield to Maturity (in the case of Original Issue
Discount Securities) borne by the Securities of such series or at the rates of
interest or yields to Maturity of all the Securities, as the case may be, to the
date of such payment or deposit) and 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 any and all defaults under this
Indenture, other than the nonpayment of principal of or premium, if any, or
accrued interest, if any, on Securities of such series or of all of the
Securities, as the case may be, which shall have become due by acceleration,
shall have been remedied--then and in every such case the Holders of a
45
majority in aggregate principal amount at Stated Maturity of the Securities of
such series or of all of the Securities, as the case may be, then outstanding,
by written notice to the Company and to the Trustee, may waive all defaults with
respect to that series or of all of the Securities, as the case may be, and
rescind and annul such declaration and its consequences; but no waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
Section 7.02. Payment of Securities on Default; Suit Therefor. In case
(1) default shall be made in the payment of any installment of interest upon any
Security of any series as and when the same shall become due and payable, and
such default shall have continued for a period of 30 days, or (2) default shall
be made in the payment of the principal of or premium, if any, on any Security
of any series as and when the same shall have become due and payable, whether at
Maturity of Securities of that series or otherwise, or (3) default is made in
the making or satisfaction of any sinking fund payment or analogous obligation
when the same becomes due by the terms of the Securities of any series and such
default shall continue for a period of 30 days--then, upon demand of the
Trustee, the Company shall pay to the Trustee, for the benefit of the Holder of
any such Security, the whole amount that then shall have become due and payable
on any such Security for principal and premium, if any, or interest, if any, or
both, as the case may be, with interest on the overdue principal and premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) on the overdue installments of interest at the rate of interest
or yield to Maturity (in the case of Original Issue Discount Securities) borne
by any such Security and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith.
46
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the 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, wherever situated, of the Company or
any other obligor upon such Securities.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under any Federal or State bankruptcy law or other similar law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee (irrespective of whether the principal of any Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 7.02) shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and premium, if any, and
interest, if any, owing and unpaid in respect of the Securities of any series
(in the case of Securities that are Original Issue Discount Securities, such
principal amount as would be then due and payable upon declaration of
acceleration in accordance with the terms of that series) and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel) and of the Holders allowed
in such judicial proceedings relative to the Company or any other obligor on the
Securities of any series, its or their creditors, or its or their property, and
to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute the same after the deduction of its charges
and expenses; and any receiver, assignee, liquidator, sequestrator or trustee in
47
bankruptcy or reorganization is hereby authorized by each of the Holders 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 compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel, and any other amounts due to the Trustee under
Section 8.06 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
approve, consent, 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.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee with respect to the Securities of any series shall be brought in its own
name as trustee of an express trust, and any recovery of judgement shall be for
the ratable benefit of the Holders of the Securities in respect of which such
action is taken.
Section 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee with respect to any series of Securities under this
Article Seven shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys on account of
principal, premium, if any, or interest, if any, upon presentation of the
several Securities of such series or the coupons appertaining thereto, as the
case may be, and stamping thereon 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
8.06 hereof;
Second: In case the principal of the outstanding Securities of that
series shall not have become due and be unpaid, to the payment of interest
on the Securities of that series, in the order of the maturity of the
installments of such interest with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate of interest (or yield to maturity in the
48
case of Original Issue Discount Securities) borne by the Securities of that
series, such payments to be made ratably to the Persons entitled thereto;
Third: In case the principal of the outstanding Securities of a series
in respect of which such moneys have been collected shall have become due
and payable, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of that series for
principal and premium, if any, and interest, if any, with interest on the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon any overdue installments
of interest at the rate of interest (or yield to Maturity in the case of
Original Issue Discount Securities) borne by the Securities of that series,
and in case such moneys shall be insufficient to pay in full the whole
amounts so due and unpaid upon the Securities of that series, then to the
payment of such principal and premium, if any, and interest, if any,
without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Security of that series over any other Security of that series, ratably to
the aggregate of such principal and premium, if any, and any accrued and
unpaid interest. The Holders of each series of Securities of which the
Required Currency is a Foreign Currency shall be entitled to receive a
ratable portion of the amount determined by the Exchange Rate Agent by
converting the principal amount outstanding of such series of Securities in
the Foreign Currency in which payments with respect to such series of
Securities are required into Dollars at the Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Securities (or, if there
is no such rate on such date for the reasons specified in Section 2.11(d),
such rate on the date specified in such Section).
Fourth: Any surplus then remaining shall be paid to the Company or to
such other Person as shall be entitled to receive it.
Section 7.04. Proceedings by Holders. No Holder of any Security of any
series or of any coupon appertaining thereto shall have any right by virtue of
or availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to
49
this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount at Stated Maturity of the Securities of that series (or, in
case of an Event of Default described in clause (d), (e) or (f) of Section 7.01,
25% in aggregate principal amount of all Securities then outstanding (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in Section 2.01(9))) shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as the
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and no direction inconsistent with
such written request shall have been given to the Trustee during such 60 day
period by the Holders of a majority in principal amount at Stated Maturity of
the outstanding Securities of such series, it being understood and intended, and
being expressly covenanted by the Holder of every Security of that series with
every other Holder of every Security of that series or coupons appertaining
thereto and the Trustee, that no one or more Holders of Securities of any series
shall have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of Securities of that series or any other series or coupons
appertaining thereto, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security or coupon to receive payment of the principal of,
and premium, if any, and interest, if any, on such Security, on or after the
respective Stated Maturities expressed in such Security or, in the case of
redemption or repayment on or after the redemption date or repayment date, as
the case may be, and to institute suit for the enforcement of any such payment
on or after such respective date shall not be impaired or affected without the
consent of such Holder.
50
SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee, in its discretion, may proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven to the Trustee or to the Holders of
Securities or coupons shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or such Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by
the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal amount of
the Securities of all series affected (voting as one class) (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in Section 2.01(9)) at the time outstanding 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, provided, however, that such direction shall not conflict with any rule
of law or this Indenture, and provided further, that (subject to the provisions
of Section 8.01) the Trustee may take any action deemed proper by the Trustee
which is not inconsistent with such direction and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee
51
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees or Responsible Officers shall determine
that the action or proceedings so directed would involve the Trustee in personal
liability. Prior to any declaration accelerating the maturity of the Securities
of a particular series (or all of the Securities as the case may be), the
Holders of a majority in aggregate principal amount at Stated Maturity of the
Securities of that series at the time outstanding may on behalf of the Holders
of all the Securities of that series waive any past default or Event of Default
described in clause (a), (b), (c) or (g) of Section 7.01 (or, in the case of an
event specified in clause (d), (e) or (f) of Section 7.01, the Holders of an
aggregate principal amount of all the Securities then outstanding (in the case
of Original Issue Discount Securities, such principal amount to be determined as
provided in Section 2.01(9))) may waive such default or Event of Default as its
consequences except (1) a default in the payment of interest, if any, or
premium, if any, on, or the principal of, any of the Securities or in the
payment of any sinking fund installment or analogous obligation with respect to
Securities or (2) in respect of a covenant or provision hereof which under
Article Eleven cannot be modified or amended without the consent of the Holder
of each Security outstanding of the series affected. Upon any such waiver the
Company, the Trustee and the Holders of Securities of that series (or all of the
Securities, as the case may be) shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 7.07, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 7.08. Notice of Defaults. The Trustee shall, within 90 days
after the occurrence of any default hereunder with respect to Securities of any
series, mail to all Holders of Securities of that series in the manner and to
the extent provided in Section 6.04(c) notice of such default known to the
Trustee, unless such default shall have been cured prior to the giving of such
notice; provided, however, that, except in the case of default in the payment of
the principal of or premium, if any, or interest, if any, on any of the
Securities of that series or in the making of any sinking fund payment or
analogous obligation with respect to Securities of that series, the Trustee
52
shall be protected in withholding such notice if and so long as the board of
directors or trustees, the executive committee, or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 7.01(d) with respect to Securities of such
series, no such notice to Holders of Securities of such series shall be given
until at least 90 days after the occurrence thereof. For the purpose of this
Section, the term "default," with respect to Securities of any series, means any
event which is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to Securities of such series.
SECTION 7.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security or coupon by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken 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 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 7.09 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder or
group of Holders, holding in the aggregate more than 10% in principal amount at
Stated Maturity of the Securities outstanding of that series (or, in case of any
suit relating to or arising under clause (d), (e) or (f) of Section 7.01, 10% in
principal amount of all Securities outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Securities")) or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or interest,
if any, on any Security on or after the respective Stated Maturities expressed
in such Securities (or in the case of redemption or repayment on or after the
redemption date or repayment date).
SECTION 7.10. Judgment Currency. If for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Security, it shall become necessary to convert into any other currency
or currency unit (the "Judgment Currency") any amount
53
in the currency or currency unit due hereunder or under such Security (the
"Contract Currency"), then such conversion shall be made at the Conversion Rate
as in effect on the date the Company shall make payment to any person in
satisfaction of such judgment. If pursuant to any such judgment, conversion
shall be made on a date other than the date payment is made and there shall
occur a change between such Conversion Rate and the Conversion Rate as in effect
on the date of payment, the Company agrees to pay such additional amounts (if
any) as may be necessary to ensure that the amount paid is the amount in the
Judgment Currency which, when converted at the Conversion Rate as in effect on
the date of payment, is equivalent to the amount then due hereunder or under
such Security in the Contract Currency. Any amount due from the Company under
this Section 7.10 shall be due as a separate debt and is not to be affected by
or merged into any judgment being obtained for any other sums due hereunder or
in respect of any Security. In no event, however, shall the Company be required
to pay more in the Contract Currency at the Conversion Rate as in effect when
payment is made than the amount stated to be due hereunder or under such
Security so that in any event the Company's obligations hereunder or under such
Security will be effectively maintained as obligations in the Contract Currency.
For purposes of this Section 7.10, "Conversion Rate" shall mean the rate
determined by the Exchange Rate Agent equal to the arithmetic average of the
highest firm bid quotations in the Contract Currency received by the Exchange
Rate Agent at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date (or, if no such rate is
quoted on such date, the last date on which such rate was quoted), from three
recognized foreign exchange dealers in New York City selected by the Exchange
Rate Agent and approved by the Company (one of which may be the Exchange Rate
Agent) for the purchase by the quoting dealer, for settlement on such payment
date, of the aggregate amount of the Judgment Currency payable on such payment
date.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee. With respect to
the Holders of any series of Securities issued hereunder, the Trustee, prior to
54
the occurrence of an Event of Default with respect to the Securities of that
series and after the curing of all Events of Default which may have occurred
with respect to the Securities of that series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations with respect to such series shall be read into
this Indenture against the Trustee. In case an Event of Default with respect to
the Securities of any series has occurred (which has not been cured or waived),
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to that series 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.
Prior to the occurrence of an Event of Default with respect to the
Securities of a series, and after the curing or waiving of all Events of Default
with respect to that series which may have occurred and in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any 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.
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:
(a) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts,
and
(b) 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 pursuant to Section 7.07 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.
55
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it has reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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
8.01.
SECTION 8.02. Reliance on Documents, Opinions, etc. Except as otherwise
provided in Section 8.01:
(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, consent, order, bond, debenture 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a written statement signed in the
name of the Company by the President and Chief Executive Officer, one of its
Vice Presidents or its Treasurer (unless other evidence in respect thereof is
herein specifically prescribed); and any resolution of the Board of Directors
shall be sufficiently evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) Whenever in the administration of the 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 provided) may, in the absence of bad faith on its part,
rely on an Officer's Certificate;
(d) the Trustee may consult with its counsel or require an Opinion of
Counsel and any such advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
56
(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, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(f) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(g) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent,
order, approval, bond, debenture, coupon or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority in
principal amount at Stated Maturity of the Securities then outstanding of any
series affected or of all the Securities, as the case may be; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding; and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of any of
the Securities or coupons; provided, however, that the Trustee shall not be
relieved of its duty to authenticate Securities as authorized by this Indenture.
The Trustee shall not be accountable for the use or application
57
by the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee in conformity with the provisions of this
Indenture.
Section 8.04. Trustee, Paying Agent or Registrar May Own Securities. The
Trustee or any paying agent or Security registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities or the coupons appertaining thereto with the same
rights it would have if it were not Trustee, paying agent or Security
registrar.
Section 8.05. Moneys to be Held in Trust. Subject to the provisions of
Section 13.04, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
Section 8.06. Compensation and Expenses of Trustee. The Company shall pay to
the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), and the Company shall pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
be attributable to its negligence or willful misconduct. The Company shall
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or willful misconduct on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability arising in connection with its duties
under this Indenture. The obligations of the Company under this Section 8.06 to
compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute addtional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and
58
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the Holders of particular Securities.
SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise provided
in Section 8.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or willful misconduct on the part
of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or willful misconduct on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or shall
acquire any conflicting interest, as defined in this Section 8.08, it shall,
within 90 days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign in the manner and with the effect
specified in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the provisions of
subsection (a) of this Section 8.08, the Trustee shall, within 10 days after the
expiration of such 90 day period, transmit notice of such failure to all Holders
of Securities, to the extent provided in Section 6.04(c).
(c) For the purposes of this Section 8.08, the Trustee shall be deemed to have
a conflicting interest with respect to Securities of any series if:
(1) the Trustee is trustee under this Indenture with respect to the
outstanding securities of any series other than that series or is trustee under
another indenture under which any other securities, or certificates of interest
or participation in any other securities, of the Company are outstanding unless
such other indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture; provided,
however, that there shall be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series other than that series or
any indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding if
(A) this Indenture and such other indenture or indentures are
59
wholly unsecured and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act of 1939, unless the Securities and Exchange
Commission shall have found and declared by order pursuant to subsection (b) of
section 305 or subsection (c) of section 307 of the Trust Indenture Act of 1939
that differences exist between the provisions of this Indenture and the
provisions of such other indenture or indentures which are so likely to involve
a material conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to Securities of that series and any such
other series and such other indentures, or (B) the Company shall have sustained
the burden of proving, on application to the Securities and Exchange Commission
and after opportunity for hearing thereon, that the trusteeship under this
Indenture with respect to Securities of that series and such other series and
such other indenture is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this Indenture
with respect to Securities of that series or such other series or such indenture
or indentures;
(2) the Trustee or any of its directors or executive officers is an obligor
upon the Securities of any series issued under this Indenture or an underwriter
for the Company;
(3) the Trustee directly or indirectly controls or is directly or indirectly
controlled by or is under direct or indirect common control with the Company or
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a director,
officer, partner, employee, appointee, or representative of the Company, or of
an underwriter (other than the Trustee itself) for the Company who is currently
engaged in the business of underwriting, except that (A) one individual may be
a director or an executive officer of the Trustee and a director or an executive
officer of the Company, but may not be at the same time an executive officer of
both the Trustee and the Company; (B) if and so long as the number of directors
of the Trustee in office is more than nine, one additional individual may be a
director or an executive officer of the Trustee and a director of the Company;
and (C) the Trustee may be designated by the Company or by an underwriter for
the Company to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent,
60
or depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this subsection (c), to act as trustee whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially owned
either by the Company or by any director, partner, or executive officer thereof,
or 20% or more of such voting securities is beneficially owned, collectively, by
any two or more of such persons; or 10% or more of the voting securities of the
Trustee is beneficially owned either by an underwriter for the Company or by any
director, partner, or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, (A) 5% or more of the voting securities,
or 10% or more of any other class of security, of the Company, not including the
Securities issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10% or more of any
class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, 5% or more of the voting securities of
any person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, 10% or more of any class of security of
any person who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (6), (7) or (8) of this
subsection (c). As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee of an
estate which included them, the provisions of the preceding sentence
61
shall not apply, for a period of two years from the date of such acquisition to
the extent that such securities included in such estate do not exceed 25% of
such voting securities or 25% of any such class of security. Promptly after May
15, in each calendar year, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as of such May 15. If
the Company fails to make payment in full of principal of or interest on any of
the Securities when and as the same becomes due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned capacities as of the
date of the expiration of such 30-day period and, after such date,
notwithstanding the foregoing provisions of this paragraph (9), all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (c).
The specifications of percentages in paragraphs (5) to (9), inclusive, of this
subsection (c) shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (c)
only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be
the owner or holder of (i) any security which it holds as collateral security
(as trustee or otherwise) for an obligation which is not in default as defined
in clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
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Except as provided in the next preceding paragraph hereof, the words
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security" or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference to the Company shall mean
every person who, within three years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the distribution of any
security of the Company outstanding at such time, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" shall mean any director of a corporation or any
individual performing similar functions with respect to any organization whether
incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a partnership,
an association, a joint-stock company, a trust, an unincorporated organization,
or a government or political subdivision thereof. As used in this paragraph, the
term "trust" shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security presently entitling the
owner or holder thereof to vote in the direction or management of the affairs of
a person, or any security issued under or pursuant to any
63
trust, agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the Securities.
(6) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the treasurer of
a corporation, and any individual customarily performing similar functions with
respect to any organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
The percentages of voting securities and other securities specified in this
Section 8.08 shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of the Trustee, the
Company or any other person referred to in this Section 8.08 (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are entitled to
cast in the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a person means such
percentage of the aggregate amount of securities of the class outstanding.
(C) The term "amount," when used in regard to securities, means the principal
amount if relating to evidences of indebtedness, the number of shares if
relating to capital shares, and the number of units if relating to any other
kind of security.
(D) The term "outstanding" means issued and not held by or for the account of
the issuer. The following securities shall not be deemed outstanding within the
meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to securities of
the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to another class
of securities of the issuer, if the obligation evidenced by such other class of
securities is not in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an obligation
of the issuer not in default as to principal or interest or otherwise;
64
(iv) securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(E) A security shall be deemed to be of the same class as another security if
both securities confer upon the holder or holders thereof substantially the same
rights and privileges; provided, however, that in the case of secured evidences
of indebtedness, all of which are issued under a single indenture, differences
in the interest rates or maturity dates of various series thereof shall not be
deemed sufficient to constitute such series different classes, and provided,
further, that, in the case of unsecured evidences of indebtedness, differences
in the interest rates or maturity dates thereof shall not be deemed sufficient
to constitute them securities of different classes, whether or not they are
issued under a single indenture.
SECTION 8.09. Eligibility of Trustee. The Trustee with respect to each series
of Securities hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State or Territory thereof
or of the District of Columbia authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $10,000,000,
subject to supervision or examination by Federal, State, Territorial, or
District of Columbia authority and having an office and place of business in The
City of New York. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 8.09, 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. In case at any time the Trustee with respect to each series of
Securities shall cease to be eligible in accordance with the provisions of this
Section 8.09, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may resign
with respect to any series of Securities at any time by giving written notice of
such resignation to the Company and by giving notice thereof to the Holders of
the applicable series of Securities in manner and to the extent provided in
Section 6.04(c). Upon receiving such notice of resignation with respect to the
applicable series of Securities, the Company
65
shall promptly appoint a successor trustee with respect to that series by
written instruments, in duplicate, executed by or pursuant to a resolution of
the Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If a successor trustee
shall not have been so appointed with respect to any series of Securities, and
shall have accepted appointment within 30 days after the giving of such notice
of resignation to the Holders of such series, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Holder who has been a bona fide holder of a Security or Securities of the
applicable series for at least six months may, subject to the provisions of
Section 7.09, on behalf of such Holder and all others similarly situated,
petition any such court for the appointment of a successor trustee with respect
to that series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of subsection (a) of
Section 8.08 after written request therefor by the Company or by any Holder who
has been a bona fide holder of a Security or Securities of the applicable series
for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the provisions
of Section 8.09 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, with respect to any series
of Securities 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, the Company may remove the Trustee with respect to any
one or more of such series of Securities and appoint a successor trustee of that
series by written instrument, in duplicate, executed by or pursuant to order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or subject to the
provisions of Section 7.09, any Holder has been a bona fide Holder of a Security
or Securities of that series for at least six months may,
66
on behalf of such Holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to that series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee with respect to that series.
(c) The Holders of a majority in aggregate principal amount at Stated Maturity
of the Securities of any series at the time outstanding may at any time remove
the Trustee with respect to such series and nominate with respect to such series
a successor trustee which shall be deemed appointed as successor trustee with
respect to such series unless within 10 days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Holder of
Securities of the series may petition any court of competent jurisdiction for
appointment of a successor trustee with respect to such series upon the terms
and conditions and otherwise as provided in subsection (a) of this Section 8.10.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee with respect to an applicable series of Securities pursuant to
any of the provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee for that series as provided
in Section 8.11.
(e) The Company shall give notice as provided in Section 15.05 of each
resignation or removal of the Trustee with respect to any series of Securities.
Each notice shall include the name of such successor trustee and the address of
its Principal Office and shall be given within 60 days of such event.
SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee appointed
as provided in Section 8.10 shall execute, acknowledge and deliver to the
Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts, duties and obligations with respect
to such series of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor
67
trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 8.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers and trusts with
respect to any series of Securities of the trustee so ceasing to act. Upon
request of any successor trustee, the Company shall execute any and all
instruments in writing in order more fully and certainly to vest in and confirm
to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 8.06.
In case of the appointment hereunder of a successor trustee with respect to
the Securities of any one or more (but not all) series, the Company, the
predecessor trustee and each successor trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which shall
contain (1) such provisions as shall be necessary or desirable to transfer and
confirm to, and vest in each successor trustee all of the rights, powers and
duties of the predecessor 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, it shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor trustee with
respect to the Securities of any series as to which the predecessor trustee is
not retiring shall continue to be vested in the predecessor 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.
No successor trustee shall accept appointment as provided in this Section 8.11
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 8.08 and eligible under the provisions of
Section 8.09.
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Upon acceptance of appointment by a successor trustee as provided in this
Section 8.11, the Company shall mail notice of the succession of such trustee
hereunder to all the Registered Holders of such series as the names and
addresses of such Holders shall appear on the registry books of the Company and
shall publish notice of such event once in an Authorized Newspaper in the Place
of Payment. If the Company fails to mail such notice in the prescribed manner
within 10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 8.12. Succession by Merger, etc. 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 the business of the
Trustee, shall be the successor of the Trustee hereunder provided such
corporation shall be qualified under the provisions of Section 8.08 and eligible
under the provisions of Section 8.09 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any Securities of any series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Securities of any series so authenticated; and in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities of any series either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities of any series or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor trustee or authenticate
Securities of any series in the name of any predecessor trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. (a) Subject to
the provision of subsection (b) of this Section 8.13, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor on the Securities of any
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series within four months prior to a default, as defined in subsection (c) of
this Section 8.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in special account
for the benefit of the Trustee individually, the Holders of the Securities of
any series, and the holders of other indenture securities (as defined in
paragraph (2) of subsection (c) of this Section 8.13)
(1) an amount equal to any and all reductions in the amount due and owing upon
any claim as such creditor in respect of principal or interest, effected after
the beginning of such four-month period and valid as against the Company and its
other creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such four-month period, or an
amount equal to the proceeds of any such property, if disposed of, subject
however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such
claim by any person (other than the Company) who is liable thereon, and (ii) the
proceeds of the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or other property in
respect of claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Federal or State bankruptcy laws or
other similar laws;
(B) to realize, for its own account, upon any property held by it as security
for any such claim, if such property was so held prior to the beginning of such
four-month period;
(C) to realize, for its own account, but only to the extent of the claim
hereinafter mentioned, upon any property held by it as security for any such
claim, if such claim was created after the beginning of such four-month period
and such property was received as security therefor simultaneously
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with the creation thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in subsection (c) of this
Section 8.13, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as provided
in such paragraph (B) or (C), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders of Securities of a series as to which such Trustee is
acting as Trustee hereunder and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal or
State bankruptcy laws or other similar laws, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal or State bankruptcy laws or other
similar laws, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any
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distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal or State bankruptcy laws
or other similar laws, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four-month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have given rise
to the obligation to account, if such Trustee had continued as trustee, occurred
after the beginning of such four-month period; and
(ii) such receipt of property or reduction of claim occurred within four
months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or
any security or securities having a maturity of one year or more at the time of
acquisition by the Trustee;
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(2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction, or by this Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the making thereof is given to
the Holders at the time and in the manner provided in Section 6.04 with respect
to reports pursuant to subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of business in the capacity of
trustee under an indenture, transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold in a
cash transaction as defined in subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a corporation organized
under the provisions of section 25(a) of the Federal Reserve Act, as amended,
which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills
of exchange, acceptances or obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this Section 8.13.
(c) For the purposes of this Section 8.13:
(1) The term "default" shall mean any failure to make payment in full of the
principal of or interest upon one of the Securities of any series or upon the
other indenture securities when and as such principal or interest becomes due
and payable.
(2) The term "other indenture securities" shall mean securities upon which the
Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the provisions
of subsection (a) of this Section 8.13, and (C) under which a default exists at
the time of the apportionment of the funds and property held in said special
account.
(3) The term "cash transaction" shall mean any transaction in which full
payment for goods or securities sold is made within seven days after
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delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean 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, manufacture,
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 that
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.
(5) The term "Company" shall mean any obligor upon the Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders. (a) Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount at
Stated Maturity of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (A) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (B) by the record of the Holders of Securities voting in favor
thereof at any meeting of Holders duly called and held in accordance with the
provisions of Article Ten, or (C) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
(b) If the Company shall solicit from the Holders of any or all series any
request, demand, authorization, direction, notice, consent, waiver or other act,
the Company may, at its option, by or pursuant to resolution of the Board of
Directors fix in advance a record date for the determination of
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Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after the record
date, but only the Holders of record at the close of business on the record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
act, and for that purpose the Securities deemed to be outstanding shall be
computed as of the record date; provided, however, that no such authorization,
agreement or consent by the Holders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
SECTION 9.02. Proof of Execution by Holders. Subject to the provisions of
Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a
Holder, his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities of
any series shall be proved by the registry books of the Company or by a
certificate of the registrar of the Securities of any series.
The record of any meeting of Holders of Securities may be proved in the manner
provided in Section 10.06.
SECTION 9.03. Who Deemed Absolute Owners. The Company, the Trustee, any paying
agent, any transfer agent and any Security registrar may treat the Holder of any
Unregistered Security and the Holder of any coupon, except with respect to a
Fully Registered Security, whether or not the Security to which it appertained
be registered, as the absolute owner of such Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
(whether or not such Security or coupon shall be overdue) and neither the
Company, the Trustee, any paying agent, any transfer agent nor any Security
registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security registrar may
treat the person in whose name a Registered Security shall be registered upon
the registry books of the Company as the absolute owner of such Security
(whether or not such
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Security shall be overdue) for the purpose of receiving payment of principal of,
premium, if any, on and, if such Registered Security is a Fully Registered
Security, interest, if any, on, such Registered Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any
transfer agent nor any Security registrar shall be affected by any notice to the
contrary. All such payments so made to any Holder for the time being or upon his
order shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon such Security.
The amount of Unregistered Securities held by any Person executing any
instrument or writing as a Holder, and the numbers of such Unregistered
Securities, and the date of his holding the same, may be proved by the
production of such Securities or by a certificate executed by any trust company,
bank, banker or member of a national securities exchange (wherever situated), as
depositary, if such certificate is in form satisfactory to the Trustee, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Unregistered Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
executing such instrument or writing as a Holder, if such certificate or
affidavit is in form satisfactory to the Trustee. The Trustee and the Company
may assume that such ownership of any Unregistered Security continues until (i)
another certificate bearing a later date issued in respect of the same
Unregistered Security is produced, or (ii) such Unregistered Security is
produced by some other Person, or (iii) such Unregistered Security is registered
as to principal or is surrendered in exchange for a Fully Registered Security,
or (iv) such Unregistered Security has been cancelled in accordance with Section
2.08.
SECTION 9.04. Company-Owned Securities Disregarded. In determining whether the
Holders of the requisite aggregate principal amount at Stated Maturity of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on
such Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction or consent only Securities which
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the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 9.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Securities and that the pledgee
is not a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 9.05. Revocation of Consents; Future Holders Bound. (a) At any time
prior to but not after, the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount at Stated Maturity of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such action, any
Holder of a Security the number, letter or other distinguishing symbol of which
is shown by the evidence to be included in the Securities the Holders of which
have consented to such action may, by filing written notice with the Trustee at
the Principal Office of the Trustee and upon proof of holding as provided in
Section 9.02, revoke such action so far as concerns such Holder and all future
Holders and owners of such Security and any Securities which may be issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Security or such other Security issued in
exchange or substitution therefor.
(b) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of any
action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
ARTICLE TEN.
HOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings. A meeting of the Holders of Securities
of any or all series may be called at any time and from time to
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time pursuant to the provisions of this Article Ten for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Seven;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Eight;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount at Stated Maturity of
the Securities of any or all series, as the case may be, under any other
provisions of this Indenture or under applicable law.
Section 10.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any or all series to take any action
specified in Section 10.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Holders of Securities of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to Holders of
Registered Securities of each series affected, at their addresses as they appear
on the registry books of the Company, and notice to Holders of Unregistered
Securities of each series affected shall be published in an Authorized Newspaper
in the Place of Payment. Such notice shall be mailed or published, as the case
may be, not less than 20 nor more than 90 days prior to the date fixed for the
meeting. However, if all Securities of any series with respect to which the
meeting is to be held are Registered Securities no notice need be given except
notice by mail as hereinabove provided.
Failure to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of Holders
of Securities of any or all series, as the case may be, shall be valid without
notice if the Holders of all such Securities outstanding, the Company and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
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Section 10.03. Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
Holders of at least 10% in aggregate principal amount at Stated Maturity of the
Securities then outstanding of any or all series, as the case may be, that may
be affected by the action proposed to be taken at the meeting, shall have
requested the Trustee to call a meeting of Holders of Securities of any or all
series, as the case may be, that may be so affected by written request setting
forth in a reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed the notice of such meeting within 20 days
after receipt of such request, then the Company or such Holders, in the amount
specified, may determine the time and the place in said Borough of Manhattan for
such meeting and may call such meeting to take any action authorized in
Section 10.01, by mailing notice thereof as provided in Section 10.02.
Section 10.04. Qualification for Voting. To be entitled to vote at any
meeting of Holders of Securities, a Person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) at a Person
appointed by an instrument in writing as proxy by such a Holder. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any or all series, as the case may be, shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 10.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 10.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
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and a permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount at Stated Maturity of the Securities
represented at the meeting.
Subject to the provisions of Section 9.04, at any meeting each Holder of
Securities with respect to which such meeting is being held, or proxy therefor,
shall be entitled to one vote for each $1,000 (or, if such Securities are
denominated in a Foreign Currency, the minimum denomination of such Securities
as specified pursuant to Section 2.01(8)) in principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in Section 2.01(9)) of such Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any such Security challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting shall
have no right to vote other than as a Holder of Securities or proxy therefor. At
any meeting of Holders of Securities, the presence of Persons holding or
representing the Securities with respect to which such meeting is being held in
such aggregate principal amount sufficient to take action on the business for
the transaction of which such meeting was called shall constitute a quorum, but,
if less than a quorum is present, the Persons holding or representing a majority
in such aggregate principal amount of such Securities represented at the meeting
may adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present. Any meeting of Holders of Securities with
respect to which such meeting is being held duly called pursuant to the
provisions of Section 10.02 or 10.03 may be adjourned from time to time by vote
of the Holders of a majority in such aggregate principal amount of the
Securities represented at the meeting and entitled to vote, and the meeting may
be held as so adjourned without further notice.
Section 10.06. Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be inscribed the signatures of
the Holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of
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the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice as mailed as provided in
Section 10.02. The record shall show the serial numbers of the Securities voting
in favor of or against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 10.07. No Delay of Rights by Meeting. Nothing in this Article
Ten contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Holders of Securities or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders of Securities under any of the provisions of this Indenture or of
the Securities.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
Section 11.01. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of any series of Securities, the Company,
when authorized by or pursuant to a resolution of the Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation,
pursuant to Article Twelve hereof, of the covenants, agreements and obligations
of the Company herein and in the Securities contained;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of any series of
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Securities as the Board of Directors and the Trustee shall consider to be for
the protection of the Holders of such Securities, and to make the occurrence, or
the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in the
Indenture as herein set forth; provided, however, that in respect of any such
additional covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default and shall not adversely affect the
interests of the Holders of Securities of any series;
(c) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of any series, any property or assets which the
Company may desire or may be required to convey, transfer, assign, mortgage or
pledge in accordance with the provisions of Section 5.03 or Section 12.02;
(d) to establish the form or terms of Securities of any series as permitted
by Section 2.01;
(e) to cure any ambiguity, to correct or supplement any provision contained
herein or in any supplemental indenture which may be defective or inconsistent
with any other provision contained herein or in any supplemental indenture, or
to make such other provisions in regard to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided, however, that such action shall not adversely affect the
interests of the Holders of Securities of any series; or
(f) 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 8.11;
(g) to provide for the documentation necessary for the issuance of
Securities outside the United States of America; or
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(h) to conform the Indenture to the provisions of the Trust Indenture Act
of 1939, as then in effect.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 11.02.
Section 11.02. Supplemental Indentures with Consent of Holders of a
Series. With the consent (evidenced as provided in Section 9.01) of the Holders
of not less than 50% in aggregate principal amount at Stated Maturity of the
Securities at the time outstanding of each series affected by such supplemental
indenture or indentures, the Company, when authorized by or pursuant to a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each 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 (i) extend the fixed Maturity of any Security, or reduce the
rate of interest or extend the time of payment of interest, if any, thereon or
reduce the principal thereof or the time during which premium is payable thereon
or change the Required Currency, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 7.01 or the amount
thereof provable in bankruptcy pursuant to Section 7.02 without the consent of
the Holder of each Security so affected, or (ii) reduce the percentage in
principal amount at Stated Maturity of the outstanding Securities, the consent
of whose Holders is required for any such supplemental indenture, or the consent
of
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whose Holders is required for any waiver of compliance with certain provisions
hereof or of certain defaults hereunder and their consequences provided for in
this Indenture, or (iii) modify any provision of this Section 11.02 or Section
7.07 hereof except to increase any such percentage or to provide certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby. A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders of such series as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
Section 11.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Eleven shall comply with the Trust Indenture Act of 1939, as then
in effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Holders of the series of Securities affected
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such
84
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 11.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
Section 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
8.02, shall be entitled to receive and shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto is authorized and permitted
by this Indenture and complies with the requirements of this Article Eleven.
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE.
Section 12.01. Company May Consolidate, etc., on Certain Terms. (a)
Subject to the provisions of Section 12.02, 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 corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of all or substantially all the property of the
Company, to any other corporation (whether or not affiliated with the Company)
authorized to acquire and operate the same; provided, however, that, except as
otherwise provided in Section 12.01(b) below, upon any such consolidation,
merger, sale or conveyance, other than a consolidation or merger in which the
Company is
85
the continuing corporation, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Securities, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture and in such series to be performed by
the Company, shall be expressly assumed, by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the Trustee by the corporation
(if other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property; and provided further that the Company or such successor
corporation, as the case may be, shall not immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
(b) Notwithstanding the provisions of Section 12.01(a), the Company may
sell or convey all or substantially all its property located in the United
States of America to one or more wholly owned Subsidiaries organized under the
laws of the United States of America or any political subdivision thereof, and
such Subsidiary or Subsidiaries will not be required to assume the performance
or observance of any of the Company's obligations under this Indenture or any
Securities.
SECTION 12.02. Securities to be Secured in Certain Events. If, upon any
consolidation or merger of the Company with or into any other corporation, or
upon any sale or conveyance of all or substantially all the property of the
Company to any other corporation, any of the property of the Company or of any
Restricted Subsidiary would thereupon become subject to any mortgage, lien or
pledge, the Company, prior to or simultaneously with such consolidation, merger,
sale or conveyance, will secure the Securities of each series outstanding
hereunder, equally and ratably with any other obligations of the Company or any
Restricted Subsidiary then entitled thereto, by a direct lien on all such
property prior to all liens other than any theretofore existing thereon.
SECTION 12.03. Successor Corporation to be Substituted. In case of any
such consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest, if
86
any, on all of the Securities of each series and the due and punctual
performance of all of the covenants and conditions of this Indenture and in such
series to be performed by the Company, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein and, if the Company is to be voluntarily dissolved, the Company
shall thereupon be released from all obligations hereunder and under the
Securities of each series. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of ARCO Chemical
Company any or all of the Securities of each series issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations of this
Indenture prescribed, the Trustee shall authenticate and shall delivery any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the other
Securities of such series theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
Section 12.04. Opinion of Counsel to be Given Trustee. Before the Trustee
shall execute any supplemental indenture required pursuant to this Article
Twelve, the Trustee, subject to Sections 8.01 and 8.02, shall receive and shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance and any such assumption complies with the provisions of this Article.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
Section 13.01. Discharge of Indenture. When (a) the Company shall deliver
to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
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destroyed, lost or stolen or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
cancelled, or (b) all the Securities of any series not theretofore cancelled or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, an amount in the Required Currency (other than funds repaid
by the Trustee to the Company in accordance with Section 13.04) sufficient to
pay at maturity or upon redemption all of the Securities of such series (other
than any Securities of such series which shall have been mutilated, destroyed,
lost or stolen and in lieu of or in substitution for which other Securities
shall have been authenticated and delivered or which shall have been paid) not
theretofore cancelled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest, if any, due or to become due to
such date of maturity or redemption date, as the case may be, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect with respect to Securities of such series, and the Trustee, on demand of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 16.07 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to Securities of such series, the Company, however,
hereby agreeing to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities.
Section 13.02. Deposited Moneys to be Held in Trust by Trustee. All moneys
deposited with the Trustee pursuant to Section 13.01 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Company if acting as its own paying agent), to the Holders of the
particular Securities for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest and premium, if any.
88
Section 13.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture, all monies then held by any paying agent of the
Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
Section 13.04. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of (and premium, if any) or
interest, if any, on Securities of any series and not applied but remaining
unclaimed by the Holders of Securities of that series for three years after the
date upon which the principal of, and premium, if any, or interest, if any, on
such Securities, as the case may be, shall have become due and payable,
shall, upon written demand, be repaid to the Company by the Trustee; and the
Holder of any of such Securities shall thereafter look only to the Company for
any payment which such Holder may be entitled to collect, provided, however,
that, before being required to make any such repayment, the Trustee may (at the
cost of the Company) mail to such Holders at their last known address or cause
to be published once a week for two successive weeks, in each case on any day of
the week, in an Authorized Newspaper in the Place of Payment, a notice (in such
form as may be deemed appropriate by the Trustee) that said moneys remain
unclaimed and that, after a date named therein, any unclaimed balance of said
moneys then remaining will be returned to the Company (except that with respect
to presentation of Securities for payment and transfer, such term shall mean the
office or agency of the Trustee in said city at which at any particular time its
corporate agency business shall be conducted).
ARTICLE FOURTEEN.
Defeasance.
Section 14.01. Applicability of Article. If pursuant to Section 2.01
provision is made for the defeasance of Securities of a series, then the
provisions of this Article shall be applicable except as otherwise specified as
contemplated by Section 2.01 for Securities of such series.
Section 14.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. At the Company's option, either (x) the Company shall
89
be deemed to have been Discharged (as defined below) from its obligations with
respect to Securities of any series on the 91st day after the applicable
conditions set forth below have been satisfied, or (y) the Company shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Sections 5.03, 5.04, 5.08, 12.01 and 12.02 with respect to Securities
of any series at any time after the applicable conditions set forth below have
been satisfied:
(a) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities of such
series (i) money in the Required Currency in an amount, or (ii) in the case of
Securities denominated in Dollars, U.S. Government Obligations (as defined
below), which through the payment of interest, principal and premium, if any, in
respect thereof in accordance with their terms will provide (without any
reinvestment of such interest, principal or premium), not later than one day
before the due date of any payment, money in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee at or prior to the time
of such deposit, to pay and discharge such installment of principal (including
any mandatory sinking fund payments) of, premium, if any, and interest on, the
outstanding Securities of such series on the dates such installments of
interest, principal or premium are due or the outstanding Securities of such
series are redeemable, if applicable, pursuant to Section 14.02(b) below;
(b) in case any of the Securities of such series are to be redeemed on any
date prior to their Stated Maturity, the Company shall have given to the Trustee
an irrevocable notice pursuant to Section 3.02 of this Indenture requiring
redemption of such Securities on such date and the Company shall have given to
the Trustee in form satisfactory to the Trustee irrevocable instructions to
publish notice of redemption of such Securities prior to said date as provided
in Section 3.02 of this Indenture; and in the event such Securities are not to
be redeemed within the 60 days next succeeding the date of such deposit with the
Trustee, the Company shall have given the Trustee in form satisfactory to it
irrevocable instructions to publish, as soon as practicable, once in each of two
successive calendar weeks in an Authorized Newspaper, a notice to the Holders of
such Securities that the
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deposit required by Section 14.02(a) has been made with the Trustee and stating
such Maturity or redemption date or dates upon which moneys are to be available
for the payment of the principal of, premium, if any, and interest on such
Securities.
(c) the Company shall have delivered to the Trustee an Officers'
Certificate certifying as to whether the Securities of such series are then
listed on the New York Stock Exchange;
(d) if the Securities of such series are then listed on the New York Stock
Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Company's exercise of its option under this Section would
not cause such Securities to be delisted;
(e) no Event of Default or event (including such deposit) which, with
notice or 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 as evidenced to the Trustee in an Officers' Certificate
delivered to the Trustee concurrently with such deposit;
(f) the Company shall have paid or duly provided for payment of all amounts
then due to the Trustee pursuant to Section 8.06.
"Discharged" means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by, and obligations under, the Securities of
such series and to have satisfied all the obligations under this Indenture
relating to the Securities of such series (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
(A) the rights of Holders of Securities of such series to receive, from the
trust fund described in clause (a) above, payment of the principal of, and
premium, if any, and the interest on such Securities when such payments are due,
(B) the Company's obligations with respect to the Securities of such series
under Sections 2.05, 2.06, 5.02 and 14.03 and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including without limitation,
the provisions of Section 8.06.
"U.S. Government Obligations" means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith
91
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof.
Section 14.03. Deposited Moneys and U.S. Government Obligations To Be Held
in Trust. All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and the Indenture, to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal, premium, if any, and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
Section 14.04. Repayment to Company. After the Maturity and payment of
the principal of, premium, if any, and interest on the Securities of any series
for which money or U.S. Government Obligations have been deposited pursuant to
Section 14.02, the Trustee and any paying agent shall promptly pay or return to
the Company upon request any money and U.S. Government Obligations held by them
that are not required for the payment of the principal of, premium, if any, and
interest on the Securities of such series. The provisions of Section 13.04 shall
apply to any money held by the Trustee or any paying agent under this Article
that remains unclaimed for two years after the Maturity of any series of
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 14.02.
Section 14.05. Reinstatement. If the Trustee is unable to apply any money
or U.S. Government Obligations in accordance with Section 14.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 14.02 until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 14.02.
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ARTICLE FIFTEEN.
Immunity of Incorporators, Stockholders,
Officers and Directors.
Section 15.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest, if
any, on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
ARTICLE SIXTEEN.
Miscellaneous Provisions.
Section 16.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
Section 16.02. Benefits of Indenture Restricted to Parties and Holders.
Nothing in this Indenture or in the Securities, expressed or implied, shall give
or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and assigns and the Holders, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; and, subject to the
provisions of Articles Nine and Fifteen, all of such covenants, conditions and
provisions shall be for the sole benefit of the parties hereto and the Holders.
Section 16.03. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be
93
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
Section 16.04. Addresses for Notices, etc. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Securities on the Company shall be
deemed to have been sufficiently given or served, for all purposes, if given or
served at the office of the Treasurer at the principal office of the Company at
Newtown Square, 3801 West Chester Pike, Newtown Square, Pennsylvania 19073
(until another address is filed by the Company with the Trustee). Any notice,
direction, request of demand by any Holder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Principal Office of the Trustee, addressed to the
attention of its Corporate Trust Division.
Section 16.05. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event, (a) if any of the
Securities affected by such event are Registered Securities, such notice shall
be sufficiently given (unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class, postage prepaid, to each
Registered Holder of such Securities, at his address as it appears on the
registry books of the Company, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice, and (b) if any
of the Securities affected by such event are Unregistered Securities, such
notice shall be sufficiently given (unless otherwise herein or in such
Securities expressly provided) if published once in an Authorized Newspaper in
the Place of Payment not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders 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. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
94
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in one or more Authorized Newspapers as required by
any Security or this Indenture, then such method of publication or notification
as shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or otherwise, it shall be impractical to mail notice
of any event to the Holders of Securities when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee and the Company shall be
deemed to be a sufficient giving of such notice.
Section 16.06. New York Contract. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 16.07. Evidence of Compliance with Conditions Precedent. Upon
any application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition; (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinion contained in such certificate or opinion are
based; (c) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
95
Section 16.08. Legal Holidays. In any case where the date of maturity
of interest on or principal of the Securities or the date fixed for redemption
of any Security will not be a Business Day at the applicable Place of Payment,
then payment of such interest and premium, if any, on or principal of the
Securities need not be made at such Place of Payment on such date but may be
made on the next Business Day at such Place of Payment with the same force and
effect as if made on the date of maturity or the date fixed for redemption and
no interest shall accrue for the period from and after such date.
Section 16.09. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
Section 16.10. No Security Interest Created. Nothing in this Indenture
or in the Securities, expressed or implied, shall be construed to create or
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its Subsidiaries is located.
Section 16.11. Table of Contents, Headings, etc. The table of contents
and the titles and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 16.12. Execution in Counterparts. This Indenture 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.
Section 16.13. Acceptance of Trust. The Trustee hereby accepts the
trusts declared and provided in this Indenture, upon the terms and conditions
hereinabove set forth.
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In Witness Whereof, ARCO Chemical Company has caused this Indenture to
be signed and acknowledged by its President and Chief Executive Officer, its
Senior Vice President and Chief Financial Officer or its Treasurer, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or an Assistant Secretary, and The Bank of New York, as Trustee, has
caused this Indenture to be signed and acknowledged by one of its Vice
Presidents or Assistant Vice Presidents, has caused its corporate seal to be
affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, as of the day and year first written above.
ARCO Chemical Company
(Seal) By DENNIS D. SCHIFFEL
--------------------------------
Attest:
JOHN E. G. BISCHOF
- --------------------------------
Assistant Secretary
The Bank of New York,
as Trustee
(Seal) By MICHAEL J. GUIRY
--------------------------------
Attest:
VINCENT P. McCONNELL
- --------------------------------
Assistant Secretary
97
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF DELAWARE )
On this 26th day of July, 1988, before me, Dennis D. Schiffel, the
undersigned officer, personally appeared who acknowledged himself to be the Vice
President and Treasurer of ARCO Chemical Company, a corporation, and that he as
such Vice President and Treasurer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by himself as Vice President and Treasurer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
BEVERLY L. LAWLESS
-------------------------------
[Notary Public]
(Seal)
BEVERLY L. LAWLESS, Notary Public
Newtown Square, Delaware County
My Commission Expires May 27, 1991
98
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 3rd day of August, 1988, before me personally came Michael J.
Guiry, to me known, who, being by me duly sworn, did depose and say that he
resides at 79-07 19th Drive, Queens, NY, that he is an Assistant Vice President
of The Bank of New York, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
VIRGINIA BARAZOTTI
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[Notary Public]
(Seal)
VIRGINIA BARAZOTTI
Notary Public, State of New York
No. 41-4734647
Qualified in Queens County
Certificate filed in New York County
Commission Expires Nov. 30, 1989
EXHIBIT A
Form of election to receive payments in Foreign Currency
or to rescind such election
The undersigned, registered owner of certificate number - (the
"Certificate"), representing [name of series of Securities] (the "Securities")
in an aggregate principal amount of , hereby
elects to receive all payments in respect of the Securities in [Foreign
Currency in which the Securities are denominated]. Subject to the terms
and conditions set forth in the indenture under which the Securities
were issued (the "Indenture"), this election shall take effect on the
next record date after this election form is received by the Trustee and
shall remain in effect until it is rescinded by the undersigned or until
the Certificate is transferred or paid in full at Maturity.
[Insert appropriate wire transfer instructions.]
rescinds the election previously submitted by the undersigned to receive
all payments in respect of the Securities in [Foreign Currency in which
the Securities are denominated] represented by the Certificate. Subject
to the terms and conditions set forth in the Indenture, this rescission
shall take effect on the next record date after this election form is
received by the Trustee, or, in the case of Maturity of an installment
of principal, the fifteenth day immediately preceding such Maturity.
The undersigned acknowledges that, except as provided in the Indenture,
any costs incurred by or on behalf of the Company in connection with the
conversion of Dollars into Foreign Currency shall be borne by the undersigned
through deduction from payments required to be made to the undersigned pursuant
to the terms of the Indenture.
All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings assigned to them in the Indenture.
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(Name of Owner)
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(Signature of Owner)