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CONAGRA, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
Subordinated Indenture
Dated as of March 10, 1994
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CROSS REFERENCE SHEET
Subordinated Indenture
Dated March 10, 1994
Between
CONAGRA, INC.
and
FIRST TRUST NATIONAL ASSOCIATION
Provisions of Trust Indenture Act of 1939 and
Subordinated Indenture to be dated as of March 10, 1994 between
CONAGRA, INC. and FIRST TRUST NATIONAL ASSOCIATION, Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2)................ 6.9
310(a)(3) and (4)................ Inapplicable
310(a)(5)........................ 6.9
310(b)........................... 6.8 and 6.10(a), (b) and (d)
310(c)........................... Inapplicable
311(a)........................... 6.13(a) and (c)(l) and (2)
311(b)........................... 6.13(b)
311(c)........................... Inapplicable
312(a)........................... 4.1 and 4.2(a)
312(b)........................... 4.2(a) and (b)(i) and (ii)
312(c)........................... 4.2(c)
313(a)........................... 4.4(a)(i), (ii), (iii), (iv),
(v) and (vi)
313(b)(1)........................ Inapplicable
313(b)(2)........................ 4.4
313(c)........................... 4.4
313(d)........................... 4.4
314(a)........................... 4.3
314(b)........................... Inapplicable
314(c)(1) and (2)................ 11.5
314(c)(3)........................ Inapplicable
314(d)........................... Inapplicable
314(e)........................... 11.5
314(f)........................... Inapplicable
315(a), (c) and (d).............. 6.1
315(b)........................... 5.11
315(e)........................... 5.12
316(a)(1)........................ 5.9, 5.10
316(a)(2)........................ Not required
316(a) (last sentence)........... 7.4
316(b)........................... 5.7
317(a)........................... 5.2
317(b)........................... 3.4(a) and (b)
318(a)........................... 11.7
*This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
____________
Page
PARTIES.............................................. 1
RECITALS
Authorization of Subordinated Indenture......... 1
Compliance with Legal Requirements.............. 1
Purpose of and Consideration for Indenture...... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined................. 1
Authorized Newspaper.................. 2
Board of Directors.................... 2
Board Resolution...................... 2
Business Day.......................... 2
Commission............................ 2
Composite Rate........................ 2-3
Consolidated Subsidiaries............. 3
Corporate Trust Office................ 3
Coupon................................ 3
Depositary............................ 3
Dollar................................ 3
ECU................................... 3
Event of Default...................... 3
Foreign Currency...................... 3
Holder, Holder of Securities,
Securityholder...................... 4
Indebtedness.......................... 4
Indenture............................. 4
Interest.............................. 4
Issuer................................ 4
Issuer Order.......................... 4
Officers' Certificate................. 4
Opinion of Counsel.................... 5
Original Issue Date................... 5
Original Issue Discount Security...... 5
Outstanding........................... 5-6
Person................................ 6
Principal............................. 6
Registered Global Security............ 6
Registered Security................... 6
Responsible Officer................... 6
Security or Securities................ 6
Senior Indebtedness................... 6-7
Subsidiary............................ 7
Trust Indenture Act of 1939........... 7
Trustee............................... 7
Unregistered Security................. 7
U.S. Government Obligations........... 7
Vice President........................ 7
Yield to Maturity..................... 7
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally....................... 7-8
SECTION 2.2. Form of Trustee's Certificate
of Authentication................... 8
SECTION 2.3. Amount Unlimited; Issuable in Series.. 8-12
SECTION 2.4. Authentication and Delivery of
Securities.......................... 12-14
SECTION 2.5. Execution of Securities............... 14-15
SECTION 2.6. Certificate of Authentication......... 15
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest.... 15-16
SECTION 2.8. Registration, Transfer and Exchange... 16-20
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............... 20-21
SECTION 2.10. Cancellation of Securities;
Destruction Thereof................. 21-22
SECTION 2.11. Temporary Securities.................. 22-23
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest..... 23
SECTION 3.2. Offices for Payments, etc............. 23-24
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee................... 24
SECTION 3.4. Paying Agents......................... 25-26
SECTION 3.5. Written Statement to Trustee.......... 26
SECTION 3.6. Luxembourg Publications............... 26
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders..................... 26-27
SECTION 4.2. Preservation and Disclosure of
Securityholders Lists............... 27-28
SECTION 4.3. Reports by the Issuer................. 28
SECTION 4.4. Reports by the Trustee................ 29-31
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default...... 32-34
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.............. 35-37
SECTION 5.3. Application of Proceeds............... 37-38
SECTION 5.4. Suits for Enforcement................. 38
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings...................... 38-39
SECTION 5.6. Limitations on Suits by
Securityholders..................... 39
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits....................... 39
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................. 40
SECTION 5.9. Control by Holders of Securities...... 40-41
SECTION 5.10. Waiver of Past Defaults............... 41
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances....................... 41-42
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs......... 42
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default............................. 42-44
SECTION 6.2. Certain Rights of the Trustee......... 44-45
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof..... 45
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc.................... 45
SECTION 6.5. Moneys Held by Trustee................ 45
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim...... 45-46
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc.......... 46
SECTION 6.8. Qualification of Trustee;
Conflicting Interests............... 47-54
SECTION 6.9. Persons Eligible for Appointment
as Trustee.......................... 54
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee................ 54-56
SECTION 6.11. Acceptance of Appointment by
Successor Trustee................... 56-57
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee... 57-58
SECTION 6.13. Preferential Collection of Claims
Against the Issuer.................. 58-62
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders..................... 62-63
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities............ 63-64
SECTION 7.3. Holders to be Treated as Owners....... 64
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding......................... 64-65
SECTION 7.5. Right of Revocation of Action Taken... 65
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders.......... 65-67
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders.................. 67-68
SECTION 8.3. Effect of Supplemental Indenture...... 69
SECTION 8.4. Documents to Be Given to Trustee...... 69
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures............. 69
SECTION 8.6. Subordination Unimpaired.............. 69
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on
Certain Terms....................... 69-70
SECTION 9.2. Successor Issuer Substituted.......... 70
SECTION 9.3. Opinion of Counsel Delivered to Trustee. 70-71
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture........................... 71-74
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities. 74-75
SECTION 10.3. Repayment of Moneys Held by Paying
Agent............................... 75
SECTION 10.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Two
Years............................... 75
SECTION 10.5. Indemnity For U.S. Government
Obligations......................... 75
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability................ 76
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons.............. 76
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture.................. 76
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons......................... 76-77
SECTION 11.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein...................... 77-78
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays........................ 78
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939......................... 78-79
SECTION 11.8. New York Law to Govern................ 79
SECTION 11.9. Counterparts.......................... 79
SECTION 11.10. Effect of Headings.................... 79
SECTION 11.11. Securities in a Foreign Currency
or in ECU........................... 79-80
SECTION 11.12. Judgment Currency..................... 80
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article.............. 80
SECTION 12.2. Election to Redeem; Notice of Redemption;
Partial Redemptions................. 81-82
SECTION.12.3. Payment of Securities Called for
Redemption.......................... 82-83
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.......................... 84
SECTION 12.5. Mandatory and Optional Sinking
Funds............................... 84-86
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1. Securities and Coupons Subordinated to
Senior Indebtedness................. 86-89
SECTION 13.2. Disputes with Holders of Certain
Senior Indebtedness................. 89
SECTION 13.3. Subrogation........................... 89
SECTION 13.4. Obligation of Issuer Unconditional.... 90
SECTION 13.5. Payments on Securities and Coupons
Permitted........................... 90
SECTION 13.6. Effectuation of Subordination by
Trustee............................. 90
SECTION 13.7. Knowledge of Trustee.................. 90-91
SECTION 13.8. Trustee May Hold Senior Indebtedness.. 91
SECTION 13.9. Rights of Holders of Senior
Indebtedness Not Impaired........... 91
SECTION 13.10. Article Applicable to Paying Agents... 91
SECTION 13.11. Trustee; Compensation Not Prejudiced.. 92
TESTIMONIUM.......................................... 92
SIGNATURES........................................... 92
THIS SUBORDINATED INDENTURE, dated as of March 10, 1994
between CONAGRA, INC., a Delaware corporation (the "Issuer"), and
FIRST TRUST NATIONAL ASSOCIATION, a national banking corporation
(the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from
time to time of its unsecured subordinated debentures, notes or
other evidences of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution
and delivery of this Indenture to provide, among other things,
for the authentication, delivery and administration of the
Securities; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities
Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said force at the date of this
Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of
any computation. The words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of
Directors of the Issuer or any committee of such Board duly
authorized to act on its behalf.
"Board Resolution" means a copy of one or more
resolutions, certified by the secretary or an assistant secretary
of the Issuer to have been duly adopted, or consented to, by the
Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a
day that in the city (or in any of the cities, if more than one)
in which amounts are payable, as specified in the form of such
Security, is not a day on which banking institutions are
authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such
date.
"Composite Rate" means, at any time, the rate of
interest, per annum, compounded semiannually, equal to the sum of
the rates of interest borne by the Securities of each series (as
specified on the face of the Securities of each series, provided,
that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the
Composite Rate shall be the interest rate applicable to such
Securities at the beginning of the year in which the Composite
Rate is being determined and, provided, further, that, in the
case of Securities which do not bear interest, the interest rate
to be used in calculating the Composite Rate shall be a rate
equal to the yield to maturity on such Securities, calculated at
the time of issuance of such Securities) multiplied, in the case
of each series of Securities, by the percentage of the aggregate
principal amount of the Securities of all series Outstanding
represented by the Outstanding Securities of such series. For
the purposes of this calculation, the aggregate principal amounts
of Outstanding Securities that are denominated in a foreign
currency, shall be calculated in the manner set forth in Section
11.11.
"Consolidated Subsidiaries" means subsidiaries the
accounts of which are consolidated with those of the Issuer in
the preparation, in accordance with generally accepted accounting
principles, of its consolidated financial statements.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located in St. Paul, Minnesota.
"Coupon" means any interest coupon appertaining to a
Security.
"Depositary" means, with respect to the Securities of
any series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depositary
by the Company pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Registered
Global Securities of that series.
"Dollar" 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" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition
specified as such in Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the person in whose name such Security is registered in
the security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means any and all obligations of a
corporation for money borrowed which in accordance with generally
accepted accounting principles would be reflected on the balance
sheet of such corporation as a liability on the date as of which
Indebtedness is to be determined. For the purpose of computing
the amount of any Indebtedness of any corporation, there shall be
excluded all Indebtedness of such corporation for the payment or
redemption or satisfaction of which money or securities (or
evidences of such Indebtedness, if permitted under the terms of
the instrument creating such Indebtedness) in the necessary
amount shall have been deposited in trust with the proper
depositary, whether upon or prior to the maturity or the date
fixed for redemption of such Indebtedness; and, in any instance
where Indebtedness is so excluded, for the purpose of computing
the assets of such corporation there shall be excluded the money,
securities or evidences of Indebtedness deposited by such
corporation in trust for the purpose of paying or satisfying such
Indebtedness.
"Indenture" or "Subordinated Indenture" means this
instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article
Six) ConAgra, Inc. and, subject to Article Nine, its successors
and assigns.
"Issuer Order" means a written statement, request or
order of the Issuer signed in its name by the chairman of the
Board of Directors, the president or any vice president of the
Issuer.
"Officers' Certificate" means a certificate signed by
the chairman of the Board of Directors or the president or any
vice president and by the treasurer or the secretary or any
assistant secretary of the Issuer and delivered to the Trustee.
Each such certificate shall include the statements provided for
in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed
by the general corporate counsel of the Issuer or such other
legal counsel who may be an employee of or counsel to the Issuer.
Each such opinion shall include the statements provided for in
Section 11.5.
"Original Issue Date" of any Security (or portion
thereof) means 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" means any Security
that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section
6.8), when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for
the payment or redemption of which moneys or
U.S. Government Obligations (as provided for
in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee
or with any paying agent (other than the
Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided
that if such Securities, or portions thereof,
are to be redeemed prior to the maturity
thereof, notice of such redemption shall have
been given as herein provided, or provision
satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in substitution for which
other Securities shall have been authenticated
and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except
with respect to any such Security as to which
proof satisfactory to the Trustee is presented
that such Security is held by a person in
whose hands such Security is a legal, valid
and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any".
"Registered Global Security", means a Security
evidencing all or a part of a series of Registered Securities,
issued to the Depositary for such series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on
the Security register of the Issuer.
"Responsible Officer" when used with respect to the
Trustee means the chairman of the Board of Directors, any vice
chairman of the board of directors, the chairman of the trust
committee, the chairman of the executive committee, any vice
chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any trust
officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" (except as otherwise
provided in Section 6.8) has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
"Senior Indebtedness" means obligations (other than
non-recourse obligations and the Securities) of, or guaranteed or
assumed by, the Issuer for borrowed money (including both senior
and subordinated indebtedness for borrowed money (other than the
Securities)) or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation, whether existing as of the date hereof or
subsequently incurred by the Issuer.
"Subsidiary" means a corporation a majority of the
outstanding voting stock of which is owned, directly or
indirectly, by the Issuer or by one or more subsidiaries of the
Issuer, or by the Issuer and one or more subsidiaries of the
Issuer.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was
originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof and, subject to the provisions of
Article Six, shall also include any successor trustee. "Trustee"
shall also mean or include each Person who is then a trustee
hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such
series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning
set forth in Section 10.1(A).
"Vice President" when used with respect to the Issuer
or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title of "vice president".
"Yield to Maturity" means the yield to maturity on a
series of securities, calculated at the time of issuance of such
series, or, if applicable, at the most recent redetermination of
interest on such series, and calculated in accordance with
accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each
series and the Coupons, if any, to be attached thereto shall be
substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent
with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, 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.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Subordinated
Indenture.
First Trust National Association,
as Trustee
By ,
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and
the Securities of each series shall rank equally and pari passu
with the Securities of each other series, but all Securities
issued hereunder shall be subordinate and junior in right of
payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness of the Issuer. There shall
be established in or pursuant to one or more Board Resolutions or
to the extent established pursuant to (rather than set forth in)
a Board Resolution, in an Officers' Certificate detailing such
establishment and/or established in one or more indentures
supplemental hereto,
(1) the designation of the Securities of
the series (which may be part of a series of
Securities previously issued);
(2) any limit upon the aggregate
principal amount of the Securities of the
series that may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to
Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or
currency in which the Securities of that
series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(4) the date or dates on which the
principal of the Securities of the series is
payable;
(5) the rate or rates at which the
Securities of the series shall bear interest,
if any, the date or dates from which such
interest shall accrue, on which such interest
shall be payable and (in the case of
Registered Securities) on which a record shall
be taken for the determination of Holders to
whom interest is payable and/or the method by
which such rate or rates or date or dates
shall be determined;
(6) the place or places where the
principal of and any interest on Securities of
the series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer to
redeem Securities, in whole or in part, at its
option and the period or periods within which,
the price or prices at which, and any terms
and conditions upon which, Securities of the
series may be redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the
Issuer to redeem, purchase or repay Securities
of the series pursuant to any mandatory
redemption, 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 any
terms and conditions upon which Securities of
the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such
obligation or the right of the Issuer to
remarket Securities of the series that have
been redeemed, purchased or repaid;
(9) if other than denominations of $1000
and any integral multiple thereof in the case
of Registered Securities, or $1000 and $5000
in the case of Unregistered Securities, the
denominations in which Securities of the
series shall be issuable;
(10) if other than the principal amount
thereof, the portion of the principal amount
of Securities of the series which shall be
payable upon declaration of acceleration of
the maturity thereof;
(11) if other than the coin or currency
in which the Securities of that series are
denominated, the coin or currency in which
payment of the principal of or interest on the
Securities of such series shall be payable
(including, but not limited to, any Foreign
Currency or ECU);
(12) if the principal of or interest on
the Securities of such series are to be
payable, at the election of the Issuer or a
Holder thereof, in a coin or currency other
than that in which the Securities are
denominated, the period or periods within
which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of
principal of and interest on the Securities of
the series may be determined with reference to
an index, formula or method, the manner in
which such amounts shall be determined;
(14) whether the Securities of the series
will be issuable as Registered Securities (and
if so, whether such Securities will be
issuable as Registered Global Securities) or
Unregistered Securities (with or without
Coupons), or any combination of the foregoing,
any restrictions applicable to the offer, sale
or delivery of Unregistered Securities or the
payment of interest thereon and, if other than
as provided in Section 2.8, the terms upon
which Unregistered Securities of any series
may be exchanged for Registered Securities of
such series and vice versa;
(15) whether, under what circumstances
and in what amounts the Issuer will pay
additional amounts on the Securities of the
series held by a person who is not a U.S.
person in respect of any tax, assessment or
governmental charge withheld or deducted and,
if so, whether the Issuer will have the option
to redeem such Securities rather than pay such
additional amounts;
(16) if the Securities of such series are
to be issuable in definitive form (whether
upon original issue or upon exchange of a
temporary Security of such series) only upon
receipt of certain certificates or other
documents or satisfaction of other conditions,
then the form and terms of such certificates,
documents or conditions;
(17) whether warrants shall be attached
to such Securities and the terms of any such
warrants;
(18) whether such Securities are
exchangeable or convertible into new
Securities of a different series and/or shares
of stock of the Issuer and/or other securities
and the terms of such exchange or conversion
and the terms, rights and preferences of such
Securities or stock;
(19) any trustees, depositaries,
authenticating or paying agents, transfer
agents or registrars or any other agents with
respect to the Securities of such series;
(20) any other events of default or
covenants with respect to the Securities of
such series; and
(21) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in
the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board
Resolution, such Officer's Certificate or in any such indenture
supplemental hereto and, unless otherwise provided, a series may
be reopened for issuances of additional Securities of such
series.
If any of the foregoing terms are not available at the
time such Board Resolutions are adopted, or such Officers'
Certificate or any supplemental indenture is executed, such Board
Resolutions, Officers' Certificate or supplemental indenture may
reference the document or documents to be created in which such
terms will be set forth prior to the issuance of such Securities.
SECTION 2.4 Authentication and Delivery of Securities.
The Issuer may deliver Securities of any series having attached
thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee
shall thereupon authenticate and deliver such Securities to or
upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity
date, original issue date, interest rate and any other terms of
the Securities of such series and Coupons, if any, appertaining
thereto shall be determined by or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. 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 6.1) shall be fully protected in relying upon:
(1) an Issuer Order requesting such
authentication and setting forth delivery
instructions if the Securities and Coupons, if
any, are not to be delivered to the Issuer;
(2) any Board Resolution, Officers'
Certificate and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3
by or pursuant to which the forms and terms of
the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting
forth the form or forms and terms of the
Securities and Coupons, if any, stating that
the form or forms and terms of the Securities
and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, and covering such other
matters as the Trustee may reasonably request;
and
(4) an Opinion of Counsel to the effect
that:
(a) the form or forms and terms of
such Securities and Coupons, if any, have been
duly authorized and established in conformity
with the provisions of this Indenture;
(b) the authentication and delivery
of such Securities and Coupons, if any, by the
Trustee are authorized under the provisions of
this Indenture;
(c) such Securities and Coupons, if
any, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner
and subject to any conditions specified in
such Opinion of Counsel, will constitute valid
and binding obligations of the Issuer; and
(d) all laws and requirements in
respect of the execution and delivery by the
Issuer of the Securities and Coupons, if any,
have been complied with;
and covering such other matters as the Trustee may reasonably
request.
Notwithstanding the provisions of Section 2.3 and of
the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to
deliver the Board Resolution and/or Officers' Certificate
otherwise required pursuant to Section 2.3 or the Issuer Order
and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of
each Security of such series if such documents are delivered at
or prior to the time of authentication upon original issuance of
the first Security of such series to be issued and reasonably
covers such subsequent issues. After the original issuance of
the first Security of such series to be issued, any separate
request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to
the authentication and delivery of such Securities.
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 by the Issuer or if the Trustee in good
faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or
would affect the Trustee's own rights, duties or immunities under
the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3
that the Securities of a series are to be issued in the form of
one or more Registered Global Securities, then the Issuer shall
execute and the Trustee shall, in accordance with this Section
and the Issuer Order with respect to such series, authenticate
and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to
the aggregate principal amount of all of the Securities of such
series issued and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3
must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute
or regulation.
SECTION 2.5 Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto shall be
signed on behalf of the Issuer by the chairman of its Board of
Directors or any vice chairman of its Board of Directors or its
president or any vice president or its treasurer, under its
corporate seal (except in the case of Coupons) which may, but
need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such Officers.
The seal of the Issuer may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any
Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Issuer who shall have signed
any of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupon so signed (or the Security
to which the Coupon so signed appertains) shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such
Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of
such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized
signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Issuer 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.
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest. The Securities of each series shall be
issuable as Registered Securities or Unregistered Securities in
denominations established as contemplated by Section 2.3 or, with
respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple
thereof. If denominations of Unregistered Securities of any
series are not so established, such Securities shall be issuable
in denominations of $1,000 and $5,000. The Securities of each
series shall be numbered, lettered or otherwise distinguished in
such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication
thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of
Directors of the Issuer referred to in Section 2.3. The
Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date
applicable to a particular series with respect to any interest
payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted
interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Registered Securities not
less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in
the terms of the Registered Securities of such series established
as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar
month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or
not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will keep at each office or agency to be maintained for
the purpose as provided in Section 3.2 for each series of
Securities a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will provide for
the registration of Securities of such series and the
registration of transfer of Registered Securities of such series.
Such register shall be in written form in the English language or
in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register
or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of
any Registered Security of any series at any such office or
agency to be maintained for the purpose as provided in Section
3.2, the Issuer shall execute and the Trustee shall authenticate
and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series,
maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary Unregistered Global Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Issuer that shall be maintained
for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified
pursuant to Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest
rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 or as specified pursuant to Section
2.3, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons
in default thereto appertaining, and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. Unless
otherwise specified pursuant to Section 2.3, Registered
Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
The Issuer shall not be required to exchange or
register a transfer of (a) any Securities of any series for a
period of 15 days next preceding the first mailing of notice of
redemption of Securities of such series to be redeemed or (b) any
Securities selected, called or being called for redemption, in
whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section
2.8, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered Global
Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered
Securities of a series represented by one or more Registered
Global Securities notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Registered Securities
or if at any time the Depositary for such Registered Securities
shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered
Securities. If a successor Depositary for such Registered
Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that
such Registered Securities be represented by one or more
Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form
without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series
in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If an Event of Default occurs and is continuing with
respect to Registered Securities of any series issued in the form
of one or more Registered Global Securities, upon written notice
from the Depositary, the Issuer will execute, and the Trustee,
upon receipt of an Officer's Certificate for the authentication
and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive
registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities,
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and
such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such
Depositary a new Registered Security or
Securities of the same series, of any
authorized denominations as requested by such
Person, in an aggregate principal amount equal
to and in exchange for such Person's
beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered
Global Security in a denomination equal to the
difference, if any, between the principal
amount of the surrendered Registered Global
Security and the aggregate principal amount of
Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, in
authorized denominations, such Registered Global Security shall
be cancelled by the Trustee or an agent of the Issuer or the
Trustee. Securities in definitive registered form without
coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names
and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or
exchange.
Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee (any of which,
other than the Issuer, shall rely on an Officers' Certificate and
an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security
or any Coupon appertaining to any Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate
and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen, or
in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related
Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Issuer may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee or its agent) connected therewith. In
case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize
the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to
save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and
the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series
issued pursuant to the provisions of this Section by virtue of
the fact that any such Security or Coupon is destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of
such series duly authenticated and delivered 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, defaced or 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 2.10 Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the
Trustee or any agent of the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it (unless such
Securities are to be remarketed pursuant to the terms thereof);
and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Securities and
Coupons held by it and deliver a certificate of disposition to
the Issuer. If the Issuer shall acquire any of the Securities or
Coupons, 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 delivered to the Trustee
or any agent of the Trustee or the agent of the Trustee for
cancellation.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the Issuer
may execute and the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series
shall be issuable as Registered Securities without coupons, or as
Unregistered Securities with or without coupons attached thereto,
of any authorized denomination, and substantially in the form of
the definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution
and authentication thereof. Temporary Securities may contain
such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities of
such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer
for such purpose as specified pursuant to Section 2.3, and the
Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal
amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this
Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any
series that may be established pursuant to Section 2.3 (including
any provision that Unregistered Securities of such series
initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located
outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would
be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The
Issuer covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be
paid the principal of, and interest on, each of the Securities of
such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places,
at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and
in this Indenture. The interest on Securities with Coupons
attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary
form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest,
in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and at the option of the
Issuer may be paid by wire transfer (to Holders of $10,000,000 or
more of Registered Securities) or by mailing checks for such
interest payable to or upon the written order of such Holders at
their last addresses at they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will
maintain in The City of New York, an agency where the Registered
Securities of each series may be presented for payment, an agency
where the Securities of each series may be presented for exchange
as provided in this Indenture and, if applicable, pursuant to
Section 2.3 and an agency where the Registered Securities of each
series may be presented for registration of transfer as in this
Indenture provided.
The Issuer will maintain one or more agencies in a city
or cities located outside the United States (including any city
in which such an agency is required to be maintained under the
rules of any stock exchange on which the Securities of such
series are listed) where the Unregistered Securities, if any, of
each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security
or Coupon will be made upon presentation of such Unregistered
Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the
Issuer. Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer will maintain in The City of New York, an
agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining
thereto, or this Indenture may be served.
The Issuer will give to the Trustee written notice of
the location of each such agency and of any change of location
thereof. In case the Issuer shall fail to maintain any agency
required by this Section to be located in the Borough of
Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the
Trustee.
The Issuer may from time to time designate one or more
additional agencies where the Securities of a series and any
Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as
provided in this Indenture and pursuant to Section 2.3 and where
the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the
Issuer may deem desirable or expedient; provided, however, that
no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain the agencies provided for in
this Section. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will 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,
(a) that it will hold all sums received
by it as such agent for the payment of the
principal of or interest on the Securities of
such series (whether such sums have been paid
to it by the Issuer or by any other obligor on
the Securities of such series) in trust for
the benefit of the Holders of the Securities
of such series, or Coupons appertaining
thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice
of any failure by the Issuer (or by any other
obligor on the Securities of such series) to
make any payment of the principal of or
interest on the Securities of such series when
the same shall be due and payable, and
(c) that at any time during the
continuance of any such failure, upon the
written request of the Trustee, it will
forthwith pay to the Trustee all sums so held
in trust by such paying agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series,
deposit with the paying agent a sum sufficient to pay such
principal or interest so becoming due, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with
respect to the Securities of any series, it will, on or before
each due date of the principal of or interest on the Securities
of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 10.1, the Issuer may at
any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer
will deliver to the Trustee on or before April 15 in each year
(beginning in 1994) a written statement, signed by two of its
officers (which need not comply with Section 11.5), stating that
in the course of the performance by the signers of their duties
as officers of the Issuer they would normally have knowledge of
any default by the Issuer in the performance or fulfillment of
any covenant, agreement or condition contained in this Indenture,
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.
SECTION 3.6 Luxembourg Publications. In the event of
the publication of any notice pursuant to Section 5.11, 6.8,
6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the party making such
publication in the Borough of Manhattan, The City of New York and
London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an
Officers' Certificate delivered to such party, make a similar
publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders. The Issuer covenants and
agrees that it will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders of the Registered
Securities of each series:
(a) semiannually and not more than 15
days after each record date for the payment of
interest on such Registered Securities, as
hereinabove specified, as of such record date
and on dates to be determined pursuant to
Section 2.3 for noninterest bearing Registered
Securities in each year, and
(b) at such other times as the Trustee
may request in writing, within 30 days after
receipt by the Issuer of any such request as
of a date not more than 15 days prior to the
time such information is furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of any series
are Registered Securities, such list shall not be required to be
furnished.
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as
to the names and addresses of the Holders of each
series of Registered Securities (i) contained in the
most recent list furnished to it as provided in Section
4.1, (ii) received by it in the capacity of Security
registrar for such series, if so acting, and (iii)
filed with it within two preceding years pursuant to
4.4(c)(ii). The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) In case three or more Holders of Securities
(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 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 a particular series (in
which case the applicants must all hold Securities of
such series) or with holders of all Securities respect
to their rights under this Indenture or under such
Securities and such application is accompanied by a
copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford to such applicants access to
the information preserved at the time by the
Trustee in accordance with the provisions of
subsection (a) of this Section, or
(ii) inform such applicants as to the
approximate number of Holders of Registered
Securities of such series or of all Registered
Securities, 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, and as to the approximate
cost of mailing to such Securityholders the
form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee
shall, upon the written request of such applicants,
mail to each Securityholder of such series or all
Holders of Registered Securities, 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 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 Commission together with a
copy of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the
Holders of Registered Securities of such series or of
all Registered Securities, as the case may be, or would
be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon
the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order
sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been
met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such
Securityholders 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 and every Holder of Securities and
Coupons, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure
of any such information as to the names and addresses
of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section,
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 such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer
covenants:
(a) to file with the Trustee, within 15 days
after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the
information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commission
may from time to time by rules and regulations
prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, or if the
Issuer is not required to file information, documents,
or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time
by the Commission, such of the supplementary and
periodic information, documents, and reports which may
be required pursuant to Section 13 of the Securities
Exchange Act of 1934, or 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;
(b) to file with the Trustee and the Commission,
in accordance with rules and regulations prescribed
from time to time by the Commission, such additional
information, documents, and reports with respect to
compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be
required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of
Securities, in the manner and to the extent provided in
Section 4.4(c), such summaries of any information,
documents and reports required to be filed by the
Issuer pursuant to subsections (a) and (b) of this
Section as may be required to be transmitted to such
Holders by rules and regulations prescribed from time
to time by the Commission.
SECTION 4.4 Reports by the Trustee.
(a) Within 60 days after December 31 of each year
commencing with the year 1995, the Trustee shall
transmit by mail to the Holders of Securities, as
provided in Subsection (c) of this Section, a brief
report dated as of such December 31 with respect to:
(i) any change to its eligibility under
Section 6.9 and its qualification under
Section 6.8;
(ii) the creation of or any material
change to a relationship specified in
paragraphs (1) through (10) of Section 6.8(d);
(iii) 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 of any series, on any
property or funds held or collected by it as
Trustee, except that the Trustee shall not be
required (but may elect) to report such
advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the
principal amount of the Securities of any
series Outstanding on the date of such report;
(iv) the amount, interest rate, and
maturity date of all other indebtedness owing
by the Issuer (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 any
indebtedness based upon a creditor
relationship arising in any manner described
in Section 6.13(b)(2), (3), (4) or (6);
(v) any change to the property and
funds, if any, physically in the possession of
the Trustee (as such) on the date of such
report;
(vi) any release, or release and
substitution, of property subject to the lien,
if any, of this Indenture (and the
consideration therefor, if any) which the
Trustee has not previously reported;
(vii) any additional issue of Securities
which the Trustee has not previously reported;
and
(viii) 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
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 5.11.
(b) The Trustee shall transmit to the
Securityholders of each series, as provided in
subsection (c) of this Section, 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 (or if no such report has yet been
so transmitted, since the date of this Indenture) for
the reimbursement of which it claims or may claim a
lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as
Trustee and which it has not previously reported
pursuant to this subsection (b), 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 of such series 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:
(i) to all Holders of Registered
Securities, as the names and addresses of such
Holders appear upon the registry books of the
Issuer;
(ii) to such other Holders of Securities
as have, within two years preceding such
transmission, filed their names and addresses
with the Trustee for that purpose; and
(iii) except in the case of reports
pursuant to subsection (b), to each Holder of
a Security whose name and address are
preserved at the time by the Trustee as
provided in Section 4.2(a).
(d) A copy of each such report shall, at the time
of such transmission to Securityholders, be furnished
to the Issuer and be filed by the Trustee with each
stock exchange upon which the Securities of any
applicable series are listed and also with the
Commission. The Issuer agrees to notify the Trustee
with respect to any series when and as the Securities
of such series become admitted to trading on any
national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any series wherever used herein, means each one of
the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body, except that any Securities, or any series of
Securities, may provide for Events of Default in lieu of and in
substitution of the Events of Default set forth herein:
(a) default in the payment of any instalment of interest
upon any of the Securities of such series as and when the same
shall become due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or
perform any other covenant or agreement on the part of the Issuer
in respect of the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series
a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or contained in this
Indenture, and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written
notice specifying such failure or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer or any
Consolidated Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or any subsidiary or for any substantial
part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(e) the Issuer or any Consolidated Subsidiary shall
commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or
any Consolidated Subsidiary or for any substantial part of its
property, or make any general assignment for the benefit of
creditors; or
(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in
the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (f)
(if the Event of Default under clause (c) or (f), as the case may
be, is with respect to less than all series of Securities then
Outstanding) occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the
Trustee or the Holders of not less than a majority in aggregate
principal amount of the Securities of each such affected series
then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or,
if the Securities of such affected series are Original Issue
Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of
such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same
shall become immediately due and payable, provided, however, that
payment of principal and interest, if any, on the Securities of
such series shall remain subordinated to the extent provided in
Article Thirteen. If an Event of Default described in clause
(c), (f) (if the Event of Default under clause (c) or (f), as the
case may be, is with respect to all series of Securities then
Outstanding), (d) or (e) 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 a majority in aggregate
principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and
to the Trustee if given by Security- holders), may declare the
entire principal (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall
become immediately due and payable, provided, however, that
payment of principal and interest, if any, on the Securities of
such series shall remain subordinated to the extent provided in
Article Thirteen.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) 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 Issuer
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 the Securities, as the case may be) and
the principal of any and 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 upon such
principal) and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series (or at the respective
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 such
amount as shall be sufficient to cover reasonable compensation to
the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee except as a result of
negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal
of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein
-- then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of such series,
each series voting as a separate class, (or of all the
Securities, as the case may be, voting as a single class) then
Outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind
and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration,
unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt. The Issuer covenants that (a) in case
default shall be made in the payment of any instalment of
interest on any of the Securities of any series when such
interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the
principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the
Securities of such series or upon any redemption or by
declaration or otherwise--then upon demand of the Trustee, the
Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series, and
such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
Securities of such series); 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 and
each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of its negligence or bad faith.
In case the Issuer 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 action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or
other obligor upon such Securities and collect in the manner
provided by law out of the property of the Issuer or other
obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities under Title
11 of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon
the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any
series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee
and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad
faith) and of the Security holders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Securities
of any series in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions
in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee and
all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6 except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Security holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar
person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining to such Securities, may be enforced by the
Trustee without the possession of any of the Securities of such
series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of
the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities
or Coupons appertaining to such Securities in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Securities or
Coupons appertaining to such Securities in respect to which such
action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of
any series shall, subject to the subordination provisions hereof,
be applied in the following order at the date or dates fixed by
the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the
several Securities and Coupons appertaining to such Securities in
respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of
such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which monies have been
collected, including reasonable compensation to the Trustee
and each predecessor Trustee and their respective agents and
attorneys and of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor
Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.6 except as a
result of Trustee's negligence or bad faith;
SECOND: In case the principal of the Securities of
such series in respect of which moneys have been collected
shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in
default 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 same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over
principal, or of any instalment of interest over any other
instalment of interest, or of any Security of such series
over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest
or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion 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 at law or in
equity or 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 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the Security
holders shall continue as though no such proceedings had been
taken.
SECTION 5.6 Limitations on Suits by Securityholders.
No Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official 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 a majority
in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request upon the Trustee
to institute such action or proceedings in its own name as
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 failed to institute any such
action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to
Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or
Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other
such Holder of Securities or Coupons appertaining to such
Securities, 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 of
the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions
of this Section, each and every Security holder and the Trustee
shall be entitled to such relief as can be given either at law or
in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, or
to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
5.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or Coupons is intended to
be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The
Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a
separate class) 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 with respect to the Securities
of such series by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the
provisions of this Indenture and provided further that (subject
to the provisions of Section 6.1) 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 in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the
giving of said direction, it being understood that (subject to
Section 6.1) the Trustee shall have no duty to ascertain whether
or not such actions or forbearances are unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities of any series as
provided in Section 5.1, the Holders of a majority in aggregate
principal amount of the Securities of all series at the time
Outstanding with respect to which an Event of Default shall have
occurred and be continuing voting as a single class may on behalf
of the Holders of all the Securities of such series waive any
past default or Event of Default described in Section 5.1 and its
consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of
any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have
been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within
ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with
respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to
the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such series in the manner and to the extent provided in Section
4.4(c), unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term
"defaults" for the purpose of this Section being hereby defined
to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series,
or in the payment of any sinking fund instalment on such series,
the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Security
holders of such series.
SECTION 5.12 Right of Court to Require Filing of
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, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Security holder or group of Security
holders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or,
in the case of any suit relating to or arising under clause (c)
or (f) of Section 5.1 (if the suit relates to Securities of more
than one but less than all series), 10% in aggregate principal
amount of Securities then Outstanding and affected thereby, or in
the case of any suit relating to or arising under clause (c),
(f), (if the suit under clause (c) or (f) relates to all the
Securities then Outstanding), (d) or (e) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or
to any suit instituted by any Security holder for the enforcement
of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security or any date
fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to the Securities of a 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, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own wilful misconduct,
except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing
or waiving of all such Events of Default with respect to
such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) 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 statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) 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 5.9 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.
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 there shall be reasonable ground
for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured
to it.
SECTION 6.2 Certain Rights Of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note,
coupon, security 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
Issuer mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Indenture at the request, order or direction of any of the
Security holders pursuant to the provisions of this
Indenture, unless such Security holders shall have offered
to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby;
(e) 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, rights or powers
conferred upon it by this Indenture;
(f) 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,
appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected
then Outstanding; provided 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 expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys not regularly in its
employ and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the
Issuer or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the
same rights it would have if it were not the Trustee or such
agent and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee, Subject to the
provisions of Section 10.4 hereof, all moneys received by the
Trustee 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 mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee
and Its Prior Claim. The Issuer covenants and agrees to 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 Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it 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 agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder,
including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The
obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities
or Coupons, and the Securities are hereby subordinated to such
senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.2 (d)
and (e), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services
are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency,
reorganization, or similar law.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in
the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting
Interests. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with respect to
the Securities of any series, then, within 90 days after
ascertaining that it has such conflicting interest and if the
default (as provided in subsection (d)) to which such conflicting
interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90 day period, the Trustee
shall either eliminate such conflicting interest or, except as
otherwise provided below in this Section, resign with respect to
the Securities of that series in the manner and with the effect
hereinafter specified in this Article and the Issuer shall take
prompt steps to have a successor appointed in the manner provided
herein.
(b) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section with
respect to the Securities of any series, the Trustee shall,
within 10 days after the expiration of such 90 day period,
transmit notice of such failure by mail to all Holders of
Securities of that series entitled to receive reports pursuant to
Section 4.4(c) and, if Unregistered Securities of that series are
outstanding, shall cause notice of such failure to be published
at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section 3.6,
at least once in an Authorized Newspaper in Luxembourg).
(c) Subject to Section 5.12, unless the Trustee's duty
to resign is stayed, as provided below in this Section, any
Holder of Securities of that series who has been a bona fide
Holder of Securities of any series referred to in subsection (a)
of this Section for at least six months may, on behalf of himself
and all other Holders of Securities of that series similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee, and the appointment of a successor, if
the Trustee fails, after written request by such Holder to comply
with the provisions of subsection (a) of this Section.
(d) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with respect to
Securities of any series if the Securities of such series are in
default (exclusive of any period of grace or requirement of
notice) as provided in Section 5.1 and
(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 Issuer are outstanding, unless such
other indenture is a collateral trust indenture under
which the only collateral consists of Securities issued
under this Indenture; provided 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 and any indenture or indentures
under which other securities, or certificates of
interest or participation in other securities, of the
Issuer are outstanding if (i) this Indenture and such
other indenture or indentures (and all series of
Securities issuable thereunder) are wholly unsecured
and rank equally, and such other indenture or
indentures (and such series) are hereafter qualified
under the Trust Indenture Act of 1939, unless the
Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act of 1939 that differences exist
between the provisions of this Indenture with respect
to Securities of that series and one or more other
series, or the provisions of such other indenture or
indentures (or such series) 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 the
Securities of that series and such other series, or
under such other indenture or indentures, or (ii) the
Issuer shall have sustained the burden of proving, on
application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture
with respect to Securities of that series and such
other series or such other indenture or indentures 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 the Securities of that series and such other
series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Issuer;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with an underwriter for the Issuer;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee, or representative of the Issuer, or of an
underwriter (other than the Trustee itself) for the Issuer
who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or
an executive officer, or both, of the Issuer, but may not be
at the same time an executive officer of both the Trustee
and the Issuer; (ii) 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, or both, of the Trustee and a director of the
Issuer; and (iii) the Trustee may be designated by the
Issuer or by any underwriter for the Issuer to act in the
capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary, or in any
other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection, 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 Issuer 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 Issuer 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
(as hereinafter in this subsection defined), (i) 5% or more
of the voting securities or 10% or more of any other class
of security of the Issuer, not including the Securities
issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or
(ii) 10% or more of any class of security of an underwriter
for the Issuer;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this subsection defined), 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 Issuer;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this subsection defined), 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 Issuer; or
(9) the Trustee owns, on the date of default upon the
Securities of such series (exclusive of any period of grace
or requirement of notice) as provided in Section 5.1 or any
anniversary of such default while such default remains
outstanding, 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. 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 shall not apply,
for a period of not more than 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 the dates of any such default and annually in each
succeeding year that the Securities of that series remain in
default, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as
of such dates. If the Issuer fails to make payment in full
of principal 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,
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; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of subsection (b) of
Section 6.13, the Trustee shall be or shall become a
creditor of the Issuer.
For the purposes of paragraph (1) of this subsection,
and of Sections 5.9 and 7.4, the term "series of securities" or
"series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such
series may vote to direct the indenture trustee, or otherwise
take action pursuant to a vote of such holders separately from
holders of another such series; provided, that "series of
securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to
(9), inclusive, of this subsection 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.
For the purposes of paragraphs (6), (7), (8) and (9)
of this subsection, only,
(i) 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;
(ii) 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
(iii) the Trustee shall not be deemed to be the owner
or holder of (x) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which
is not in default as defined in clause (ii) above, or (y)
any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or
(z) any security which it holds as agent for collection, or
as custodian, escrow agent, or depositary, or in any similar
representative capacity.
(e) For purposes of this Section:
(1) the term "underwriter" when used with reference to
the Issuer means every person who, within one year prior to
the time as of which the determination is made, has
purchased from the Issuer with a view to, or has offered or
sold for the Issuer in connection with, the distribution of
any security of the Issuer 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 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 "Issuer" shall mean any obligor upon the
Securities; and
(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.
(f) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(1) a specified percentage of the voting securities of
the Trustee, the Issuer or any other person referred to in
this Section (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;
(2) a specified percentage of a class of securities of
a person means such percentage of the aggregate amount of
securities of the class outstanding;
(3) 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;
(4) 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; and
(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; and
(5) 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.
(g) Except in the case of a default in the payment of
the principal or interest on the Securities of any series, or in
the payment of any sinking or purchase fund installment, the
Trustee shall not be required to resign as provided in this
Section if the Trustee has sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that
(1) the default under this Indenture may be cured or
waived during a reasonable period and under the procedures
described in such application, and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders of Securities
of the series.
The filing of such an application will automatically stay
the performance of the duty to resign until the Commission orders
otherwise.
(h) The resignation of the Trustee shall become
effective only upon the appointment of a successor trustee and
the acceptance by the successor trustee of such appointment.
(i) If Section 310(b) of the Trust Indenture Act is
amended at any time after the date of this Indenture to change
the circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series
or to change any of the definitions in connection therewith, this
Section 6.8 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting
as Trustee hereunder with respect to any Outstanding Securities
to be deemed to have a conflicting interest, in which case such
changes shall be incorporated herein only to the extent that such
changes (i) would not cause the Trustee to be deemed to have a
conflicting interest or (ii) are required by law.
SECTION 6.9 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State or the
District of Columbia or the laws of a foreign country to the
extent permitted under the Trust Indenture Act having a combined
capital and surplus of at least $25,000,000, and which is
authorized under such laws to exercise corporate trust powers and
is subject to supervision or examination by Federal, State or
District of Columbia authority, provided that, neither the
Company nor any person directly or indirectly controlling,
controlled by, or under common control with the Company shall
serve as Trustee of any Security. If such corporation is a
corporation organized under the laws of a foreign country, then
such corporation shall have its principal place of business in
The City of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer and (i) if any Unregistered Securities
of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered
Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section
4.4(c)(ii) at such addresses as were so furnished to the Trustee
and (iii) by mailing notice of such resignation to the Holders of
then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon
receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall
have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder 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
5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor
trustee. 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:
(i) the Trustee shall fail to comply with the
provisions of Section 6.8 with respect to any series of
Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and shall fail
to resign after written request therefor by the Issuer or by
any Securityholder; or
(iii) 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 or
liquidator 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 Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, 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 5.12, any Securityholder who
has been a bona fide Holder of a Security or Securities of such
series for at least six months may on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor trustee with respect to such 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.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time outstanding may at
any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the
Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
6.10 shall execute and deliver to the Issuer 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
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver
an indenture supplemental hereto which 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 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 under separate
indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.8 and
eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee
as provided in this Section 6.11, the Issuer shall give notice
thereof (a) if any Unregistered Securities of a series affected
are then Outstanding, to the Holders thereof, by publication of
such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), (b)
if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.4(c)(ii), by
mailing such notice to such Holders at such addresses as were so
furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to
the Holders of Registered Securities of each series affected, by
mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 6.10. If
the Issuer fails to give such notice within ten days after
acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee. 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 corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified
under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
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 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 either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right
to adopt the certificate of authentication of any predecessor
Trustee or to 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 6.13 Preferential Collection of Claims Against
the Issuer. (a) Subject to the provisions of this Section, if
the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Issuer within three
months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually,
the Holders of the Securities and the holders of other indenture
securities (as defined in this Section):
(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 three months' period and valid as against
the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, 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 Issuer 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 three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Issuer 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
Issuer) who is liable thereon, (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 Issuer
in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States
Code or applicable state law;
(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 three months'
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 three months' period and
such property was received as security therefor
simultaneously 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 would occur within three 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 three months'
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
Securityholders and the Holders of other indenture securities in
such manner that the Trustee, such Securityholders 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 Issuer in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, 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
Issuer of the funds and property in such special account and
before crediting to the respective claims of the Trustee, such
Securityholders and the Holders of other indenture securities
dividends on claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, 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 distribution
with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State law, 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, such
Securityholders 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, such Securityholders 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 three months' 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 three months' 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 three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of this
Section 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;
(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
Securityholders at the time and in the manner provided in
this Indenture;
(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)(3) below;
(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 Issuer; 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)(4) of this
Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of
the Securities 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 Issuer is an obligor (as defined
in the Trust Indenture Act of 1939) outstanding under any
other indenture (i) under which the Trustee is also trustee,
(ii) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (iii)
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 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 Issuer 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 the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Issuer arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon the
Securities.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage
of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 6.1 and 6.2, the
execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of
any instrument may be proved by the certificate of any
notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer
oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the person
executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the
identifying number of such Security and the date of his
holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the
date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer
by the person named in such certificate. Any such
certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified
therein. The holding by the person named in any such
certificate of any Unregistered Securities of any series
specified therein shall be presumed to continue for a period
of one year from the date of such certificate unless at the
time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the
same Securities shall be produced, or (2) the Security of
such series specified in such certificate shall be produced
by some other person, or (3) the Security of such series
specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person
so executing such instrument and the amount and numbers of
any Security or Securities for such series may also be
proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register
or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem
and treat the person in whose name any Security shall be
registered upon the Security register for such series as the
absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes
and neither the Issuer, the Trustee, nor any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, 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 any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent or waiver
under this Indenture, Securities which are owned by the Issuer or
any other obligor on the Securities with respect to which such
determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities
which 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 if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount 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 serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of
the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the
date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the
protection of the Holders of Securities or Coupons, and to
make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction,
condition or provision 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 an Event of Default or may limit the
remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or 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 any other provisions as the Issuer may
deem necessary or desirable, provided that no such action
shall adversely affect the interests of the Holders of the
Securities or Coupons;
(e) to establish the form of terms or Securities of
any series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3; and
(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 6.11.
The Trustee is hereby authorized to join with the
Issuer 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,
assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed without the consent of the
Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force
at the date of execution thereof) 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 or of the Coupons appertaining to
such Securities; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce
the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any amount payable
on redemption thereof, or make the principal thereof (including
any amount in respect of original issue discount), or interest
thereon payable in any coin or currency other than that provided
in the Securities and Coupons or in accordance with the terms
thereof, 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 5.1 or
the amount thereof provable in bankruptcy pursuant to Section
5.2, or alter the provisions of Section 11.11 or 11.12 or impair
or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any
right of repayment at the option of the Securityholder, or modify
the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the
Holders, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of
Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent
of the Holders of each Security so affected.
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
Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy
of a resolution of the Board of Directors (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order) certified by
the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee shall join with the Issuer
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
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (iii) if any Unregistered Securities
of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.6, at least once in an, Authorized
Newspaper in Luxembourg), and in each case such notice shall set
forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any
defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article 8 complies with the applicable
provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer 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 by the Issuer,
authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
SECTION 8.6 Subordination Unimpaired. This Indenture
may not be amended to alter the subordination of any of the
Outstanding Securities without the written consent of each holder
of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain
Terms. The Issuer covenants that it will not merge or
consolidate with any other person or sell or convey (including by
way of lease) all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing
corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of
the Issuer (if other than the Issuer) shall be a corporation
organized under the laws of the United States or any state
thereof and expressly assumes the due and punctual payment of the
principal of and interest on all the Securities and Coupons,
according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Issuer, by
supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or entity, and (ii)
the Issuer, such person or such successor corporation or entity,
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.
SECTION 9.2 Successor Issuer Substituted. In case of
any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the
Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which,
together with any Coupons appertaining thereto, theretofore shall
not have been signed by the Issuer and delivered to the Trustee;
and, upon the order of such successor corporation instead of the
Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities, together with any Coupons
appertaining thereto, which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities, together with any Coupons
appertaining thereto, which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued, together with any
Coupons appertaining thereto, shall in all respects have the same
legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities and
Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease
or conveyance such changes in phraseology and form (but not in
substance) may be made in the Securities and Coupons thereafter
to be issued as may be appropriate.
In the event of any such sale or conveyance (other than
a conveyance by way of lease) the Issuer or any successor
corporation which shall theretofore have become such in the
manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities
and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel Delivered to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2,
may receive an Opinion of Counsel, prepared in accordance with
Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies
with the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest on all the Securities of any
series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto
(other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) in the case of any series of Securities where
the exact amount (including the currency of payment) of principal
of and interest due on such Securities can be determined at the
time of making the deposit referred to in clause (ii) below, (i)
all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore 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 (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4)
or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United
States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest
in such amounts and at such times as will insure the availability
of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series, and if, in any such
case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer with respect to Securities
of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to
(i) rights of registration of transfer and exchange of Securities
of such series, and of Coupons appertaining thereto, and the
Issuer's right of optional redemption, if any, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor
(but not upon acceleration) and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) the
rights (including the Trustee's rights under Section 10.5),
obligations and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.2)
and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel which complies
with Section 11.5 and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities and
Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be
delayed longer than required by then-applicable mandatory rules
or policies of any securities exchange upon which the Securities
are listed. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and
to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.3. In
addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the
exact amounts (including the currency of payment) of principal of
and interest subsequently due on which can be determined at the
time of making the deposit referred to in clause (a) below, the
Issuer shall be deemed to have paid and discharged the entire
Indebtedness on all the Securities of such a series and the
Coupons appertaining thereto on the 121st day after the date of
the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of
such series and Coupons appertaining thereto shall no longer be
in effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series, and of Coupons
appertaining thereto, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration)
and remaining rights of the Holders to receive sinking fund
payments, if any, (iv) the rights (including the Trustee's rights
under Section 10.5), obligations and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof
with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the
Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
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 and
Coupons appertaining thereto (i) cash in an amount, or (ii)
in the case of any series of Securities the payments on
which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons
appertaining thereto on the date that such principal or
interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture
and the Securities of such series;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement
or instrument to which the Issuer is a party or by which it
is bound;
(c) the Issuer has delivered to the Trustee an
Officers' Certificate or an opinion of independent legal
counsel to the Trustee to the effect that Holders of the
Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to the defeasance contemplated by this provision have been
complied with, and the Opinion of Counsel shall also state
that such deposit does not violate applicable law;
(e) no event or condition shall exist that, pursuant
to the provisions of Section 13.1, would prevent the Issuer
from making payments of the principal of or interest on the
Securities of such series and Coupons appertaining thereto
on the date of such deposit or at any time during the period
ending on the 121st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period); and
(f) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect that (x) the trust funds will not
be subject to any right of holders of Senior Indebtedness,
including without limitation those arising under Article
Thirteen of this Indenture, and (y) after the 121st day
following the deposit (assuming that the Holders are not
"insiders" of the Issuer, as such term is defined in 11
U.S.C. 101(30) and applicable case law interpreting same),
the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, except that if a
court were to rule under any such law in any case or
proceeding that the trust funds remained property of the
Issuer, no opinion is given as to the effect of such laws on
the trust funds except the following: (A) assuming such
trust funds remained in the Trustee's possession prior to
such court ruling to the extent not paid to Holders of
Securities of such series and Coupons appertaining thereto,
the Trustee will hold, for the benefit of such Holders, a
valid and perfected security interest in such trust funds
that is not avoidable in bankruptcy or otherwise, (B) such
Holders will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are
used, and (C) no property, rights in property or other
interests granted to the Trustee or such Holders in exchange
for or with respect to any of such funds will be subject to
any prior rights of holders of Senior Indebtedness,
including without limitation those arising under Article
Thirteen of this Indenture.
SECTION 10.2 Application by Trustee of Funds Deposited
for Payment of Securities. Subject to Section 10.4, all moneys
deposited with the Trustee (or other trustee) pursuant to Section
10.1 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto 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; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series, all moneys
then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon
demand of the Issuer, 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 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years. Any moneys deposited with
or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series or Coupons
attached thereto and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall
have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series and
of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer,
mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b)
in respect of Unregistered Securities of any series, shall at the
expense of the Issuer cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if
required by Section 3.6, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a
date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the
Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 10.1 or the
principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of
any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or
Trustee or of any successor of either of them, either directly or
through the Issuer or Trustee or any successor of either of them,
under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part
of the consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of Securities and Coupons.
Nothing in this Indenture, in the Securities or in the Coupons
appertaining thereto, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than
the parties hereto and their successors, the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if
any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of
the parties hereto and their successors, the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if
any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. 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 or
Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to ConAgra,
Inc., One ConAgra Drive, Omaha, Nebraska 68102, Attention: Vice
President-Finance. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at First Trust National
Association, 180 East 5th Street, St. Paul Minnesota 55101, Attn:
Corporate Trust (until another address of the Trustee is given by
notice to the Issuer and Holders of Securities or Coupons).
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. In any case where notice to such 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.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Issuer when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent 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, except
that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need
be furnished.
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 opinions contained in
such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such 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.
Any certificate, statement or opinion of an officer of
the Issuer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of
the Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto
or the date fixed for redemption or repayment of any such
Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be
made on the next succeeding Business Day 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 after
such date.
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939. 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 herein by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 New York Law to Govern. This Indenture
and each Security and Coupon shall be deemed to be a contract
under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of
law.
SECTION 11.9 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 11.10 Effect of Headings. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officer's Certificate
delivered pursuant to Section 2.3 of this Indenture with respect
to a particular series of Securities, whenever for purposes of
this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a coin or
currency other than Dollars (including ECUs), then the principal
amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the
Market Exchange Rate. For purposes of this Section 11.11, Market
Exchange Rate shall mean the noon Dollar buying rate for that
currency for cable transfers quoted in The City of New York as
certified for customs purposes by the Federal Reserve Bank of New
York; provided, however, in the case of ECUs, Market Exchange
Rate shall mean the rate of exchange determined by the Commission
of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities
(such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the
rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New
York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other
than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the
Issuer and all Holders.
SECTION 11.12. Judgment Currency. The Issuer agrees,
to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of
the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York
Banking Day preceding that on which final unappealable judgment
is given and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short
of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions
of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except
as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Election to Redeem; Notice of Redemption;
Partial Redemptions. The election of the Issuer to redeem any
Securities shall be evidenced by, or pursuant to, a Board
Resolution which shall identify the Securities to be redeemed.
In the case of any redemption at the election of the Issuer of
the Securities of any series with the same issue date, interest
rate and stated maturity, the Issuer shall, at least 60 days
prior to the redemption date fixed by the Issuer (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of the principal amount of securities of such series to
be redeemed. Notice of redemption to the Holders of Registered
Securities of any series to be redeemed as a whole or in part at
the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice
of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii), shall
be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least thirty days and not more than
sixty prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Issuer, the Trustee shall
make such information available to the Issuer for such purpose).
Notice of redemption to all other Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized
Newspaper in London (and, if required by Section 3.6, in an
Authorized Newspaper in Luxembourg), in each case, once in each
of three successive calendar weeks, the first publication to be
not less than thirty nor more than sixty days prior to the date
fixed for redemption. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to
give notice by mail, or 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.
The notice of redemption to each such Holder shall
specify the principal amount of each Security of such series held
by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed
for redemption, that such redemption is pursuant to the mandatory
or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to
accrue. 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 such series in
principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to
be redeemed at the option of the Issuer shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name
and at the expense of the Issuer.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying
agents (or, if the Issuer is acting as its own paying agent, set
aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to
the date fixed for redemption. If less than all the Outstanding
Securities of a series are to be redeemed at the election of the
Issuer, the Issuer will deliver to the Trustee at least 60 days
prior to the date fixed for redemption (unless a shorter Notice
shall be satisfactory to the Trustee) an Officers' Certificate
stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer
prior to the expiration of any restriction on such redemption,
the Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of any series with the
same issue date, interest rate and stated maturity are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair (which may provide for the selection
for redemption of portions of the principal amount of Registered
Securities of such series), the particular Securities of such
series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities
selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to
be redeemed.
SECTION 12.3 Payment of Securities Called for
Redemption. If notice of redemption has been given as above
provided, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption,
and on and after said date (unless the Issuer shall default in
the payment of such Securities at the redemption price, together
with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto
shall be void, and, except as provided in Sections 6.5 and 10.4,
such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at
a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for
redemption shall be payable in the case of Securities with
Coupons attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the
terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, bear interest from the date
fixed for redemption at the rate of interest or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with Coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant Coupons maturing after the date fixed for redemption,
the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of the 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 the
Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment
is to be made is herein referred to as the "sinking fund payment
date."
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in
cash, the Issuer may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section
2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 11.5) (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of Securities
of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right
to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking
fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor
as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such
60th day, to deliver such Officers' Certificate and Securities
specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking
fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU or a
lesser sum in Dollars or in any Foreign Currency or ECU if the
Issuer shall so request) with respect to the Securities of any
particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a)
the Issuer or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for
the redemption of Securities of such series in part at the option
of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity
is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for
the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following
sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities for such series by operation
of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the
sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case
such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixteenth day
preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities and Coupons Subordinated to
Senior Indebtedness. The Issuer covenants and agrees, and each
Holder of a Security or Coupon, by his acceptance thereof,
likewise covenants and agrees, that the indebtedness represented
by the Securities and any Coupons and the payment of the
principal of and interest on each and all of the Securities and
of any Coupons is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to
the prior payment in full of Senior Indebtedness.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Issuer or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Issuer,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 13.2 that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred an event of
default (other than a default in the payment of principal or
interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness, as defined therein or in the instrument
under which the same is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), and such event of default shall have
continued beyond the period of grace, if any, in respect thereof,
and, in the cases of subclauses (i) and (ii) of this clause (b),
such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series
shall have been declared due and payable pursuant to Section 5.1
and such declaration shall not have been rescinded and annulled
as provided in Section 5.1 then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for such
payment in money or money's worth, before the
Holders of any of the Securities or Coupons
are entitled to receive a payment on account
of the principal of or interest on the
indebtedness evidenced by the Securities or of
the Coupons, including, without limitation,
any payments made pursuant to Article Twelve;
(2) any payment by, or distribution of
assets of, the Issuer of any kind or
character, whether in cash, property or
securities, to which the Holders of any of the
Securities or Coupons or the Trustee would be
entitled except for the provisions of this
Article shall be paid or delivered by the
person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or
their representative or representatives or to
the trustee or trustees under any indenture
under which any instruments evidencing any of
such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness held or represented by each, to
the extent necessary to make payment in full
of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment
or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
holders of the indebtedness evidenced by the
Securities or Coupons or to the Trustee under
this instrument; and
(3) in the event that, notwithstanding
the foregoing, any payment by, or distribution
of assets of, the Issuer of any kind or
character, whether in cash, property or
securities, in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Issuer of the
Securities, shall be received by the Trustee
or the Holders of any of the Securities or
Coupons before all Senior Indebtedness is paid
in full, or provision made for such payment in
money or money's worth, such payment or
distribution in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Issuer of the
Securities shall be paid over to the holders
of such Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any such
Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness
shall have been paid in full, after giving
effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at
any time after the 121st day following the
date of deposit of cash or, in the case of
Securities payable only in Dollars, U.S.
Government Obligations pursuant to Section
10.1(B) (provided all conditions set out in
such Section shall have been satisfied), the
funds so deposited and any interest thereon
will not be subject to any rights of holders
of Senior Indebtedness including, without
limitation, those arising under this Article
Thirteen.
SECTION 13.2 Disputes with Holders of Certain Senior
Indebtedness. Any failure by the Issuer to make any payment on
or perform any other obligation under Senior Indebtedness, other
than any indebtedness incurred by the Issuer or assumed or
guaranteed, directly or indirectly, by the Issuer for money
borrowed (or any deferral, renewal, extension or refunding
thereof) or any indebtedness or obligation as to which the
provisions of this Section shall have been waived by the Issuer
in the instrument or instruments by which the Issuer incurred,
assumed, guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default or event of default
under Section 13.1(b) if (i) the Issuer shall be disputing its
obligation to make such payment or perform such obligation and
(ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and
effect and is not subject to further review, including a judgment
that has become final by reason of the expiration of the time
within which a party may seek further appeal or review, and (B)
in the event of a judgment that is subject to further review or
appeal has been issued, the Issuer shall in good faith be
prosecuting an appeal or other proceeding for review and a stay
of execution shall have been obtained pending such appeal or
review.
SECTION 13.3 Subrogation. Subject to the payment in
full of all Senior Indebtedness, the Holders of the Securities
and any Coupons shall be subrogated (equally and ratably with the
holders of any obligations of the Issuer which by their express
terms are subordinated to Senior Indebtedness of the Issuer to
the same extent as the Securities are subordinated and which are
entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until all amounts owing on
the Securities and any Coupons shall be paid in full, and as
between the Issuer, its creditors other than holders of such
Senior Indebtedness and the Holders, no such payment or
distribution made to the holders of Senior Indebtedness by virtue
of this Article that otherwise would have been made to the
Holders shall be deemed to be a payment by the Issuer on account
of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders, on the
one hand, and the holders of Senior Indebtedness, on the other
hand.
SECTION 13.4 Obligation of Issuer Unconditional.
Nothing contained in this Article or elsewhere in this Indenture
or in the Securities or any Coupons is intended to or shall
impair, as among the Issuer, its creditors other than the holders
of Senior Indebtedness and the Holders, the obligation of the
Issuer, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities and the
amounts owed pursuant to any Coupons as and when the same shall
become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders
and creditors of the Issuer other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of case, property or securities
of the Issuer received upon the exercise of any such remedy.
Upon payment or distribution of assets of the Issuer
referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of
the Issuer is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment
or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount
thereof or payable thereon, the amount paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 13.5 Payments on Securities and Coupons
Permitted. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities or Coupons shall affect the
obligations of the Issuer to make, or prevent the Issuer from
making, payment of the principal of or interest on the Securities
and of any Coupons in accordance with the provisions hereof and
thereof, except as otherwise provided in this Article.
SECTION 13.6 Effectuation of Subordination by Trustee.
Each holder of Securities or Coupons, by his acceptance thereof,
authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
SECTION 13.7 Knowledge of Trustee. Notwithstanding the
provisions of this Article or any other provisions of this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee, or the taking of any
other action by the Trustee, unless and until the Trustee shall
have received written notice thereof mailed or delivered to the
Trustee at its Corporate Trust Office from the Issuer, any
Holder, any paying agent or the holder or representative of any
class of Senior Indebtedness; provided that if at least three
Business Days prior to the date upon which by the terms hereof
any such moneys may become payable for any purpose (including,
without limitation, the payment of the principal or interest on
any Security or interest on any Coupon) the Trustee shall not
have received with respect to such moneys the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority
to receive such moneys and to apply the same to the purpose for
which they were received and shall not be affected by any notice
to the contrary that may be received by it within three Business
Days prior to or on or after such date.
SECTION 13.8 Trustee May Hold Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held
by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 6.8 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 13.9 Rights of Holders of Senior Indebtedness
Not Impaired. No right of any present or future holder of any
Senior Indebtedness to enforce the subordination herein shall at
any time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any noncompliance
by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i)
the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, (ii) the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, (iii) no implied covenants or obligations shall be
read into this Indenture against the Trustee and (iv) the Trustee
shall not be deemed to be a fiduciary as to such holders.
SECTION 13.10 Article Applicable to Paying Agents. In
case at any time any paying agent other than the Trustee shall
have been appointed by the Issuer and be then acting hereunder,
the term "Trustee" as used in this Article shall in such case
(unless the context shall require otherwise) be construed as
extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent
were named in this Article in addition to or in place of the
Trustee, provided, however, that Sections 13.7 and 13.8 shall not
apply to the Issuer if it acts as its own paying agent.
SECTION 13.11 Trustee; Compensation Not Prejudiced.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee pursuant to Section 6.6.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of March 10,
1994.
CONAGRA, INC.
By: /s/ James P. O'Donnell
Title: Vice President,
Finance and Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Sue E. Badberg
Title: Assistant Secretary
First Trust National
Association, Trustee
By: /s/ Daniel Bluhm
Title: Vice President
[CORPORATE SEAL]
Attest:
By: /s/ Frank P. Leslie
Title: Assistant Secretary
STATE OF NEBRASKA )
) ss:
COUNTY OF DOUGLAS )
On this 10th day of March, 1994 before me personally
came James P. O'Donnell, to me personally known, who, being by me
duly sworn, did depose and say that he resides at Omaha,
Nebraska, that he is the Vice President, Finance and Treasurer of
ConAgra, Inc., 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 authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
/s/ Lillian Child
Notary Public
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On this 10th day of March, 1994 before me personally came
David Bluhm, to me personally known, who, being by me duly sworn,
did depose and say that he resides in Apple Valley, Minnesota,
that he is Vice President of First Trust National Association,
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 authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
/s/ Martina Mendez
Notary Public