EXHBIT 4.2
COSTCO WHOLESALE CORPORATION
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Standard Multiple-Series
Indenture Provisions
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Dated as of March 20, 2002
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TABLE OF CONTENTS
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ARTICLE I Definitions and Other Provisions of General Application.................................................1
1.1 Definitions.....................................................................................1
1.2 Compliance Certificates and Opinions............................................................7
1.3 Form of Documents Delivered to Trustee..........................................................8
1.4 Acts of Holders; Record Dates...................................................................8
1.5 Notices, etc., to Trustee and Company..........................................................10
1.6 Notice to Holders; Waiver......................................................................10
1.7 Conflict with Trust Indenture Act..............................................................11
1.8 Effect of Headings and Table of Contents.......................................................11
1.9 Successors and Assigns.........................................................................11
1.10 Separability Clause............................................................................11
1.11 Benefits of Indenture..........................................................................11
1.12 Governing Law..................................................................................11
1.13 Legal Holidays.................................................................................11
1.14 Language of Notices, Etc.......................................................................12
1.15 Counterparts...................................................................................12
ARTICLE II Security Forms........................................................................................12
2.1 Forms Generally................................................................................12
2.2 Form of Trustee's Certificate of Authentication................................................12
2.3 Securities in Global Form......................................................................13
ARTICLE III The Securities.......................................................................................14
3.1 Amount Unlimited; Issuable in Series...........................................................14
3.2 Denominations..................................................................................16
3.3 Execution, Authentication, Delivery and Dating.................................................17
3.4 Temporary Securities...........................................................................19
3.5 Registration, Registration of Transfer and Exchange............................................21
3.6 Mutilated, Destroyed, Lost and Stolen Securities...............................................25
3.7 Payment of Interest; Interest Rights Preserved.................................................26
3.8 Persons Deemed Owners..........................................................................27
3.9 Cancellation...................................................................................27
3.10 Computation of Interest........................................................................28
3.11 Manner of Payments in Respect of Securities....................................................28
3.12 Compliance with Certain Laws and Regulations...................................................29
ARTICLE IV Satisfaction and Discharge............................................................................29
4.1 Satisfaction and Discharge of Indenture........................................................29
4.2 Application of Trust Money.....................................................................30
4.3 Satisfaction, Discharge and Defeasances of Securities of Any Series............................30
4.4 Reinstatement..................................................................................31
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4.5 Definitions....................................................................................32
ARTICLE V Remedies...............................................................................................32
5.1 Events of Default..............................................................................32
5.2 Acceleration of Maturity; Rescission and Annulment.............................................34
5.3 Collection of Indebtedness and Suits for Enforcement by Trustee................................35
5.4 Trustee May File Proofs of Claim...............................................................35
5.5 Trustee May Enforce Claims Without Possession of Securities....................................35
5.6 Application of Money Collected.................................................................36
5.7 Limitation on Suits............................................................................36
5.8 Unconditional Right of Holders to Receive Principal, Premium and interest......................37
5.9 Restoration of Rights and Remedies.............................................................37
5.10 Rights and Remedies Cumulative.................................................................37
5.11 Delay or Omission Not Waiver...................................................................37
5.12 Control by Holders.............................................................................37
5.13 Waiver of Past Defaults........................................................................38
5.14 Undertaking for Costs..........................................................................38
ARTICLE VI The Trustee...........................................................................................38
6.1 Certain Duties and Responsibilities............................................................38
6.2 Notice of Defaults.............................................................................40
6.3 Certain Rights of Trustee......................................................................40
6.4 Not Responsible for Recitals or Issuance of Securities.........................................41
6.5 May Hold Securities............................................................................41
6.6 Money Held in Trust............................................................................42
6.7 Compensation and Reimbursement.................................................................42
6.8 Disqualification; Conflicting Interests........................................................42
6.9 Corporate Trustee Required; Eligibility........................................................42
6.10 Resignation and Removal; Appointment of Successor..............................................43
6.11 Acceptance of Appointment by Successor.........................................................44
6.12 Merger, Conversion, Consolidation or Succession to Business....................................45
6.13 Preferential Collection of Claims Against Company..............................................45
6.14 Appointment of Authenticating Agent............................................................45
ARTICLE VII Holders' Lists and Reports by Trustee and Company....................................................47
7.1 Company To Furnish Trustee Names and Addresses of Holders......................................47
7.2 Preservation of Information; Communications to Holders.........................................48
7.3 Reports by Trustee.............................................................................48
7.4 Reports by Company.............................................................................48
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ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease................................................49
8.1 Company May Consolidate, Etc...................................................................49
8.2 Successor Corporation Substituted..............................................................49
ARTICLE IX Supplemental Indentures...............................................................................50
9.1 Supplemental Indentures Without Consent of Holders.............................................50
9.2 Supplemental Indentures With Consent of Holders................................................51
9.3 Execution of Supplemental Indentures...........................................................52
9.4 Effect of Supplemental Indentures..............................................................52
9.5 Conformity With Trust Indenture Act............................................................52
9.6 Reference in Securities to Supplemental Indentures.............................................52
ARTICLE X Covenants..............................................................................................53
10.1 Payment of Principal, Premium and Interest.....................................................53
10.2 Maintenance of Office or Agency................................................................53
10.3 Money for Securities Payments to be Held in Trust..............................................54
10.4 Additional Amounts.............................................................................55
10.5 Statement as to Compliance.....................................................................56
ARTICLE XI Redemption of Securities..............................................................................56
11.1 Applicability of Article.......................................................................56
11.2 Election to Redeem; Notice to Trustee..........................................................56
11.3 Selection by Trustee of Securities to be Redeemed..............................................57
11.4 Notice of Redemption...........................................................................57
11.5 Deposit of Redemption Price....................................................................58
11.6 Securities Payable on Redemption Date..........................................................58
11.7 Security Redeemed in Part......................................................................59
ARTICLE XII Sinking Funds........................................................................................59
12.1 Applicability of Article.......................................................................59
12.2 Satisfaction of Sinking Fund Payments With Securities..........................................60
12.3 Redemption of Securities for Sinking Fund......................................................60
ARTICLE XIII Meetings of Holders of Securities...................................................................61
13.1 Purposes for Which Meetings May Be Called......................................................61
13.2 Call, Notice and Place of Meetings.............................................................61
13.3 Persons Entitled To Vote at Meetings...........................................................61
13.4 Quorum; Action.................................................................................61
13.5 Determination of Voting Rights; Conduct and Adjournment of Meetings............................62
13.6 Counting Votes and Recording Action of Meetings................................................63
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ARTICLE XIV Immunity of Incorporators, Stockholders, Officers and Directors......................................64
14.1 Immunity of Incorporators, Stockholders, Officers and Directors................................64
ARTICLE XV Subordination.........................................................................................64
15.1 Agreement to Subordinate.......................................................................64
15.2 No Payments to Holders of Securities in Certain Circumstances..................................65
15.3 Payments by Trustee or Holders of Securities to Holders of Senior Debt.........................66
15.4 Subrogation....................................................................................66
15.5 Obligation of Company Unconditional............................................................66
15.6 Payments on Securities Permitted...............................................................67
15.7 Effectuation of Subordination by Trustee.......................................................68
15.8 Knowledge of Trustee...........................................................................68
15.9 Trustee May Hold Senior Debt...................................................................68
15.10 Rights of Holders of Senior Debt Not Impaired..................................................68
15.11 Rights and Obligations Subject to Power of Court...............................................69
15.12 Definitions....................................................................................69
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ARTICLE I
Definitions and Other Provisions of General Application
1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally within an Article of this Indenture,
may be defined in that Article.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
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"Bearer Security" means any Security in the form of a bearer security
established pursuant to Section 3.1 which is payable to bearer and is not a
Registered Security (including without limitation any Security in temporary or
definitive global bearer form).
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or place
of publication, means each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in that Place of Payment or place of
publication are authorized or obligated by or pursuant to law regulation or
executive order to close or as specified for a series of Securities pursuant to
Section 3.1 or as specified for any Security in such Security.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.4.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Request of the Company", "Company Order" or "Order
of the Company" means a written request or order signed in the name of the
Company by its Chairman of the Board, its President or a Vice-President, and by
its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Subsidiary" means every Subsidiary which does not
transact any substantial portion of its business or regularly maintain any
substantial portion of its operating assets outside the United States or Canada
other than (i) a Subsidiary acquired or organized after the date of this
Indenture which, prior to the date of acquisition or organization, shall have
been classified by resolution of the Board of Directors or Executive Committee
of the Board of Directors of the Company as an Unconsolidated Subsidiary unless
and until the Board of Directors or Executive Committee of the Board of
Directors of the Company shall by resolution reclassify such Subsidiary as a
Consolidated Subsidiary; and (ii) any Subsidiary of an Unconsolidated
Subsidiary; provided, however, that an Unconsolidated Subsidiary shall not be a
successor, directly or indirectly, to any Consolidated Subsidiary.
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"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date hereof is located at 101 East Fifth Street, St. Paul, MN
55101, except that with respect to the presentation of Securities (or Coupons,
if any, representing an installment of interest) for payment or for registration
of transfer and exchange, a "Corporate Trust Office" is also maintained at the
date hereof at New York Bond Drop Window, U.S. Bank Trust New York, 100 Wall
Street, Suite 1600, New York, NY 10005.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt" means indebtedness of the Company or any Consolidated Subsidiary
representing money borrowed (which term shall include evidences of indebtedness
representing extensions of credit whether or not representing obligations for
money borrowed), except indebtedness owed to the Company by any Consolidated
Subsidiary or owed to any Consolidated Subsidiary by the Company or any other
Consolidated Subsidiary, and shall include indebtedness of any other person for
money borrowed when such indebtedness is guaranteed by the Company or any
Consolidated Subsidiary. The term "Debt" shall be deemed to include the
liability of the Company or any Consolidated Subsidiary in respect of any
investment or similar certificate, except to the extent such certificates are
pledged by purchasers as collateral for, and are offset by, receivables.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.1 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
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.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Date" has the meaning specified in Section 3.4.
"Global Security" or "global Security" means a Registered or Bearer
Security evidencing all or part of a series of Securities issued to the
Depositary for such series in accordance with Section 3.3.
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"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or Coupon,
the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
acceleration, notice of redemption or repurchase, notice of option to elect
repayment or otherwise, and includes the Redemption Date.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Trustees, the President or a Vice President of the Company and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or be an employee of the Company and who shall be
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof upon the occurrence of an
Event of Default and the continuation thereof.
"Outstanding" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
(ii) Securities, or portions thereof, for whose payment money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities and any Coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
satisfactory to the Trustee has been made; or
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(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Securities are valid, binding and legal obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination or calculation, upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, and (ii) Securities owned by the
Company or such other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such determination or calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Securities of that series are payable as specified
in accordance with Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
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"Registered Security" means any Security in the form of a registered
security established pursuant to Section 3.1 which is registered in the Security
Register as to principal and any interest (including without limitation any
Security in temporary or definitive global registered form).
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 3.1, which date shall be, unless
otherwise specified pursuant to Section 3.1, the fifteenth day preceding such
Interest Payment Date, whether or not such day shall be a Business Day.
"Responsible Officer", when used with respect to the Trustee means any
vice president, the secretary, any trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" has the meaning specified in Section 15.12.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security (or upon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subordinated Debt" has the meaning specified in Section 15.12.
"Subsidiary" means any corporation at least a majority of the
outstanding voting stock of which shall at the time be owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, where
voting stock means stock (or such equivalent) of any class or classes, however
designated, having ordinary voting power for the election of at least a majority
of the members of the board of directors (or other governing body) of such
corporation, other than stock (or such equivalent) having such power only by
reason of the happening of a contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as
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used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Unconsolidated Subsidiary" means any Subsidiary other than a
Consolidated Subsidiary.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the annual yield to maturity, if any, set forth on the
face thereof.
1.2 Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, except the certificate of
destruction pursuant to Section 3.9, shall include
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(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 each such individual he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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1.3 Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article XIII, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
bylaw to take acknowledgments of deeds, certifying that
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the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by certificate executed by any trust company, bank,
banker or other depositary, wherever situated, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificates or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security is
produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security or (4) such Bearer Security is
no longer Outstanding.
(d) The fact and date of execution of any such instrument or writing
pursuant to clause (c) above, the authority of the Person executing the same and
the principal amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this clause.
(e) The principal amount and serial numbers of Registered Securities
held by any Person and the date of holding the same shall be proved by the
Security Register.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and/or Coupon and the Holder of every Security and/or Coupon issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security and/or Coupon.
(g) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, or in the
circumstances permitted by the Trust Indenture Act, the Company may, at its
option, by or pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Where the Company does not fix a record date
prior to the first solicitation of a Holder made by any Person in respect of any
such Act, the record date for any such Act shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 7.1) prior to such first solicitation. With regard to any record date,
any request, demand, authorization, direction, notice, consent, waiver or other
Act may be
9
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
1.5 Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office and unless otherwise herein expressly provided, any such document shall
be deemed to be sufficiently made, given, furnished or filed upon its receipt by
a Responsible Officer of the Trustee, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, Attention: Secretary.
1.6 Notice to Holders; Waiver. Where this Indenture provides for notice to
Holders of any event:
(a) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, within the time prescribed for the giving of such notice, and
(b) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided or unless otherwise specified in such Securities) if
published once in an Authorized Newspaper in New York City and London and mailed
to such Persons whose names and addresses were previously filed with the
Trustee, within the time prescribed for the giving of such notice. In case by
reason of the suspension of regular mail service or by reason of any other cause
it shall be impracticable to give such notice to Holders by mail, then such
notification as the Company shall direct the Trustee in writing to give shall
constitute a sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish
10
any notice to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as the Company shall direct the
Trustee in writing to give shall constitute sufficient notice to such Holders
for every purpose hereunder. Neither the failure to give notice by publication
to Holders of Bearer Securities as provided above, nor any defect in any notice
so published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
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 of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
1.7 Conflict with Trust Indenture Act. This Indenture is subject to,
and shall be governed by, the provisions of the Trust Indenture Act that are
required to be a part of this Indenture. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
1.8 Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
1.9 Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
1.10 Separability Clause. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
1.11 Benefits of Indenture. Nothing in this Indenture or in the
Securities or Coupons, express or implied, shall give to any Person other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
1.12 Governing Law. This Indenture and the Securities and Coupons shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to conflicts of laws provisions thereof other than Section
5-1401 of the New York General Obligations Law.
1.13 Legal Holidays. Except as otherwise specified as contemplated by
Section 3.1, in any case where any Interest Payment Date Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or Coupons, if any) payment of interest or principal (and
11
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day at such Place
of Payment.
1.14 Language of Notices, Etc. Any request, demand authorization,
direction, notice, consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be in an
official language of the country of publication.
1.15 Counterparts. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
ARTICLE II
Security Forms
2.1 Forms Generally. The Securities of each series and the Coupons, if
any, to be attached thereto shall be in substantially the forms as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons, if any. If the form
of Securities of any series is established by or by action taken pursuant to a
Board Resolution, a copy of the Board Resolution together with an appropriate
record of any action taken pursuant thereto, which Board Resolution or record of
such action shall have attached thereto a true and correct copy of the forms of
Security approved by or pursuant to such Board Resolution, shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be printed, typed,
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.
2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated and issued under
the within-mentioned Indenture.
12
U.S. Bank National Association as Trustee
By: --------------------------------------------
Authorized Signatory
2.3 Securities in Global Form. If Securities of a series are issuable
in global form, as specified as contemplated by Section 3.1 then,
notwithstanding clause (h) of Section 3.1 and the provisions of Section 3.2,
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or Section 3.4. Subject to the provisions of Section 3.3
and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any
Security in definitive global bearer form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of the eighth paragraph of Section
3.3 shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written instructions
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of the eighth paragraph of Section 3.3.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of and any
premium and any interest on any Security in definitive global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.6 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
outstanding Securities represented by a definitive global security as shall be
specified in a written statement of the Holder of such definitive global
Security or, in the case of a definitive global Security in bearer form, of
Euro-clear or Clearstream Banking, societe anonyme which is produced to the
Trustee by such Person.
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ARTICLE III
The Securities
3.1 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 from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant
to Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(c) the date or dates on which the principal of (and premium, if any,
on) any of the Securities of the series are payable or the method of
determination thereof and the amount or amounts of any installment of principal
payable on such dates;
(d) the rate or rates, or the method of determination thereof, at which
any of the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the interest
payable on any Registered Securities on any Interest Payment Date;
(e) the place or places where the principal of (and premium, if any)
and interest, if any, on any of the Securities and Coupons, if any, of the
series shall be payable and the office or agency for the Securities of the
series maintained by the Company pursuant to Section 10.2;
(f) the period or periods within which, the price or prices at which
and the terms and conditions upon which any of the Securities and any Coupons of
the series may be redeemed, in whole or in part, at the option of the Company;
(g) the terms of any sinking fund and the obligation, if any, of the
Company to redeem or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
14
(h) if other than denominations of $1,000, if registered, and $5,000,
if bearer, and any integral multiple of the applicable denominations, the
denominations in which the Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of any of the Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
5.2;
(j) the application, if any, of Section 4.3, or such other means of
satisfaction and discharge as may be specified for the Securities and Coupons,
if any, for a series;
(k) any deletions or modifications of or additions to the Events of
Default set forth in Section 5.1 or covenants of the Company set forth in
Article X pertaining to the Securities of the series;
(l) the forms of the Securities and Coupons, if any, of the series;
(m) whether the Securities of the series are to be issued as Registered
Securities or Bearer Securities (with or without Coupons), or a combination
thereof, whether Bearer Securities may be exchanged for Registered Securities of
the series and whether Registered Securities may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and regulations) and
the circumstances under which and the place or places where any such exchanges,
if permitted, may be made; and whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities of the
series are to be issuable in definitive global form with or without Coupons and,
if so, whether beneficial owners of interests in any such definitive global
Security may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances under which
and the place or places where any such exchanges may occur, if other than in the
manner provided in Section 3.5;
(n) if the Securities and Coupons, if any, of the series are to be
issued upon the exercise of warrants, the time, manner and place for Securities
to be authenticated and delivered;
(o) whether and under what circumstances and with what procedures and
documentation the Company will pay additional amounts on any of the Securities
and Coupons, if any, of the series to any Holder who is not a United States
person (including a definition of such term), in respect of any tax, assessment
or other governmental charge withheld or deducted from a payment thereon and, if
so, whether the Company will have the option to redeem such Securities rather
than pay additional amounts (and the terms of any such option);
(p) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the Coupons
15
appertaining thereto as they severally mature and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 3.4.
(q) whether the Securities of the series shall be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities;
(r) whether the Securities of the series are convertible into or
exchangeable for any other security or property of the Company or any other
person and the terms upon which such conversion or exchange will occur;
(s) whether the Securities of the series are to be issuable as
Subordinated Debt; and
(t) any other terms of any of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the Coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination, the rate or rates of interest, if any, and the Maturity and except
as may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.3) set forth in the Officers, Certificate
referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
The Securities shall be payable as to principal and interest, if any,
and any premium payable upon the redemption thereof in Dollars.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action together with such Board Resolution shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers, Certificate setting forth the terms
of the Securities of such series.
3.2 Denominations. The Securities of each series shall be issuable in
such denominations as shall be specified as contemplated by Section 3.1. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000, if
registered, and $5,000, if bearer, and in any integral multiple of the
applicable denominations. 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 Company executing the same may determine with the approval of
the Trustee.
16
3.3 Execution, Authentication, Delivery and Dating. The Securities
shall be executed in the name and on behalf of the Company by manual or
facsimile signatures of its Chairman of the Board, its President or any of its
Vice Presidents, attested by the manual or facsimile signature of its Secretary
or one of its Assistant Secretaries. Any Coupons shall be executed on behalf of
the Company by the manual or facsimile signature of any such officer of the
Company.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any Coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with the sale of a Bearer Security during the "restricted period"
as defined in United States Treasury regulation Section 1.163-5(c)(2)(i)(D)(7),
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that a definitive Bearer Security sold
during the restricted period may be delivered only outside the United States and
only if the Person entitled to receive such definitive Bearer Security shall
have furnished a certificate in the form set forth in Exhibit A.1 to this
Indenture, dated no earlier than 15 days prior to the earlier of the date on
which such definitive Bearer Security is delivered and the date on which any
temporary bearer Global Security first becomes exchangeable for such definitive
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
If all the Securities of a series are not to be originally issued at
one time, and if the Board Resolution, Officers' Certificate or supplemental
indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Securities
and the determination of the terms of particular Securities of such series such
as interest rate or rates (or the method in which such rate or rates are to be
determined), if any, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue.
If the forms or terms of the Securities of the series and any related
Coupons have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, 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, an Opinion of Counsel
stating:
(a) if the forms of such Securities and any Coupons have been
established by or pursuant to a Board Resolution as permitted by Section 2.1,
that such forms have been established in conformity with the provisions of this
Indenture; and
17
(b) if the terms of such Securities and any Coupons have been
established by or pursuant to a Board Resolution as permitted by Section 3.1,
that such terms have been established in conformity with the provisions of this
Indenture.
Notwithstanding the provisions of Section 3.1 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 Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company 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 authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication;
and each Bearer Security and any Bearer Security in global form shall be dated
as of the date of original issuance of the first Security of such series to be
issued.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 3.9
together with a written statement (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in the form of a
Global Security, then the Company shall execute and the Trustee shall in
accordance with this Section and the Company Order with respect to such series
authenticate and deliver the Global Security that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
Outstanding Securities of such series to be represented by the Global Security,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction, and (iv) shall bear a legend substantially to the following effect:
"Unless and until this Security is exchanged in whole or in part for Securities
in definitive form, registered in the names of the various beneficial holders
hereof as then certified to the Company by the Depositary or a successor
Depositary, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary" or to such other effect as the Depositary and the Trustee may agree.
18
Each Depositary designated pursuant to Section 3.1 for a Global
Security in registered form 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.
The Trustee shall have no responsibility to determine if the Depositary is so
registered.
3.4 Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, (i) in registered form or (ii) in bearer form, with one
or more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced conclusively by their execution of such
Securities. Such temporary Securities may be (in the case of Registered
Securities) and shall be (in the case of Bearer Securities) in global form.
Except in the case of temporary Global Securities in bearer form (which
are exchangeable for definitive Bearer Securities in accordance with the
provisions of the following paragraphs), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office of agency of the Company
maintained pursuant to Section 10.2 in a Place of Payment for such series for
the purpose of exchanges of Securities of such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any unmatured Coupons appertaining thereto) the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like aggregate principal amount of definitive Securities of the same
series and of like tenor and authorized denominations; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
(including a definitive Bearer Security in global form) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.3.
If temporary Global Securities in bearer form of any series are issued,
any such temporary global Securities in bearer form shall, unless otherwise
provided therein, be delivered to the London office of a Depositary (the "Common
Depositary"), for the benefit of Euro-clear and Clearstream Banking, societe
anonyme, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security in bearer form (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security in bearer form, executed by
the Company. On or after the Exchange Date, such temporary global Security in
bearer form shall be surrendered by the Common Depositary to the Trustee, as the
Company's
19
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security in
bearer form, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security in bearer form to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary global Security in
bearer form shall be in bearer form, registered form, definitive global form
(registered or bearer), or a combination thereof, as specified as contemplated
by Section 3.1, and, if a combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary global Security in bearer form, upon such
presentation by the Common Depositary, such temporary global Security in bearer
form shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euro-clear as to the portion of such temporary
global Security in bearer form held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream Banking, societe anonyme as to the portion of such temporary global
Security in bearer form held for its account then to be exchanged, each in the
form set forth in Exhibit A.2 to this Indenture; and provided, further, that
definitive Bearer Securities shall be delivered in exchange for a portion of a
temporary global Security in bearer form only in compliance with the
requirements of Section 3.3.
Unless otherwise specified in such temporary global Security in bearer
form, the interest of a beneficial owner of Securities of a series in a
temporary global Security in bearer form shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when
the beneficial owner instructs Euro-clear or Clearstream Banking, societe
anonyme, as the case may be, to request such exchange on his behalf and delivers
to Euro-clear or Clearstream Banking, societe anonyme, as the case may be, a
certificate in the form set forth in Exhibit A.1 of this Indenture, dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euro-clear, Clearstream Banking, societe
anonyme, the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified in such temporary global Security in bearer form, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security in bearer form, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or Clearstream Banking,
societe anonyme. The definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security in bearer form shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on a temporary global
Security in bearer form on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euro-clear and Clearstream Banking,
20
societe anonyme on such Interest Payment Date upon delivery by Euro-clear and
Clearstream Banking, societe anonyme to the Trustee of a certificate or
certificates in the form set forth in Exhibit A.2 to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security in bearer form (or to such other accounts as they may
direct) on such Interest Payment Date and, who have each delivered to Euro-Clear
or Clearstream Banking, societe anonyme, as the case may, be a certificate in
the form set forth Exhibit A.1 to this Indenture. Any interest so received by
Euro-Clear and Clearstream Banking, societe anonyme and not: paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 10.3.
3.5 Registration, Registration of Transfer and Exchange. The Company shall cause
to be kept at an office or agency to be maintained by the Company in accordance
with Section 10.2 a register (being the combined register of the Security
Registrar and all transfer agents designated pursuant to Section 10.2 for the
purpose of registration of transfer of Securities and sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and the registration of transfers of Registered
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 10.2 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series
(except a Global Security representing all or a portion of the Securities of
such series) may be exchanged for other Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Registered Securities to be exchanged at any such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Bearer Securities may not be issued in exchange for
Registered Securities.
The Company may establish pursuant to Section 3.1 that, at the option
of the Holder (subject to Section 3.3), Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured Coupons and all matured Coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured Coupon
or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or
21
Coupons may be waived by the Company and the Trustee if there if there is
furnished to each of them such security or indemnity as each may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
Business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any definitive global Bearer Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a definitive global Bearer Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 3.1, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such definitive global Bearer Security, executed by
the Company. On or after the earliest date on which such interests may be so
exchanged, such definitive global Bearer Security shall be surrendered by the
Common Depositary or such or other depositary or Common Depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such definitive global
Bearer Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such definitive global Bearer Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 3.1, shall be in
the form of Bearer Securities or Registered Securities or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; and provided, further,
22
that no Bearer Security delivered in exchange for a portion of a definitive
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any portion of
a definitive global Bearer Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case maybe, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such definitive global
Bearer Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided,
that such Registered Security shall be simultaneously surrendered for
redemption.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90
23
days after the Company receives such notice or becomes aware of such
ineligibility or if an event of default relating to the Securities of such
series has occurred and is continuing, the Company's election pursuant to
Section 3.1 shall no longer be effective with respect to the Securities of such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security representing such series in exchange for such Global Security.
Unless otherwise specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Company may at any time and in its sole
discretion determine that the Securities of any series issued in the form of one
or more Global Securities shall no longer be represented by such Global Security
or Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive form on such terms as are acceptable
to the Company and such Depositary; provided, however, that no portion of a
Global Security in registered form may be surrendered in exchange for Securities
in bearer form. Thereupon, the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without charge to the
Holders,
(i) a new Security or Securities of the series of any authorized
denomination as requested by such Depositary in aggregate principal amount equal
to and in exchange for the related beneficial interests in the Global Security;
and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered,
Global Security and the aggregate principal amount of Securities delivered to
Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
Securities (a) in definitive registered form in authorized denominations, if the
Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Securities of such series are issuable as Bearer Securities or (c) as either
Registered or Bearer Securities, if the Securities of such series are issuable
in either form; provided, however, that a Bearer Security may not be delivered
in exchange for a Registered Security, and provided, further, that a definitive
Bearer Security shall be delivered in exchange for a temporary Global Security
in bearer form only in compliance with the conditions set forth in Section 3.3
and provided, further, that delivery of a Bearer Security shall be made only
outside the United States.
24
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be canceled by the Trustee, Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Securities are so registered.
Notwithstanding any other provisions of this Section to the contrary,
unless and until a Global Security is exchanged in whole for Securities in
definitive form, a 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.
3.6 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated
Security or Security with a mutilated Coupon appertaining to it is surrendered
to the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding with
Coupons corresponding to the Coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and the Trustee (i) evidence
to each of their satisfaction of the destruction, loss or theft of any Security
or Coupon and (ii) such security or indemnity as may be reasonably required by
each of them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or Coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen Coupon appertains (upon surrender to the Trustee of such Security
with all appurtenant Coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, it
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or Coupon, pay such Security
or Coupon; provided, however, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
10.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
25
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.
3.7 Payment of Interest; Interest Rights Preserved. Unless otherwise
provided as contemplated by Section 3.1 with respect to any series of
Securities, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not all be more than 10 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series
26
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(b) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security, and, subject as aforesaid, each such Security shall be so dated, or
have attached thereto such Coupons, that neither gain nor loss in interest shall
result from such transfer, exchange or substitution.
3.8 Persons Deemed Owners. Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Sections 3.5 and 3.7) any interest on such Security, and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Title to any Bearer Security and any Coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any Coupon
as the absolute owner of such Security or Coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary, as a Holder, with respect to
such Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security. Neither the Company or the Trustee,
nor any agent of the Company or the Trustee, will have any responsibility or
liability for any aspects of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
3.9 Cancellation. All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if
27
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All such Securities and Coupons so delivered, and all such Securities and
Coupons so surrendered to the Trustee, shall be promptly canceled by the
Trustee. All Bearer Securities and unmatured Coupons held by the Trustee pending
such cancellation shall be deemed to be delivered for cancellation for all
purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities and Coupons held by the Trustee shall be disposed of in a manner
selected by the Trustee and the Trustee shall deliver a certificate evidencing
such destruction to the Company.
3.10 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
3.11 Manner of Payments in Respect of Securities. The provisions of
this Section shall apply to the Securities of any series unless otherwise
provided as contemplated by Section 3.1.
(a) The following payment provisions shall apply to any Registered
Security of any series:
(i) Except as provided in subparagraph (a)(ii) below, payment of
principal of and premium, if any, and interest, if any, on such Registered
Security at Maturity will be made at the Place of Payment in immediately
available funds against surrender of such Registered Security, and any interest
on any Registered Security payable on an Interest Payment Date will be paid,
unless otherwise specified pursuant to the provisions of Section 3.1 or in the
related Registered Security, at the Place of Payment by mailing a check by first
class mail to the Person entitled thereto at the address of such Person
appearing on the Security Register.
(ii) Payment of the principal of, premium, if any, and interest, if
any, on such Security may also, subject to applicable laws and regulations, be
made at such other place or places as may be designated by the Company by any
appropriate method.
(b) Payment of the principal of and premium, if any, and interest, if
any, on any Bearer Security will be made, except as provided in Section 3.4 with
respect to temporary global Securities, unless otherwise specified pursuant to
Section 3.1 and/or Section 9.2(a), at such place or places outside the United
States as may be designated by the Company pursuant to any applicable laws or
regulations by any appropriate method on the payment date therefor against
surrender of the Bearer Security, in the case of payment of principal and
premium, if any, or the relevant Coupon, in the case of payment of interest, if
any, to a Paying Agent designated for such series pursuant to Section 10.2.
28
(c) Not later than 10 Business Days (with respect to any Place of
Payment) prior to each payment date, the Trustee shall deliver to the Company a
copy of its record of the respective aggregate amounts of principal of, premium,
if any, and interest, if any, on the Securities to be made on such payment date,
specifying the amounts so payable in respect of Registered Securities and Bearer
Securities.
3.12 Compliance with Certain Laws and Regulations. If any Bearer
Securities are to be issued in any series of Securities, the Company will use
reasonable efforts to provide for arrangements and Procedures designed pursuant
to then applicable laws and regulations, if any, to ensure that such Bearer
Securities are sold or resold, exchanged, transferred and paid only in
compliance with such laws and regulations and without adverse consequences to
the Company, the Holders and the Trustee.
ARTICLE IV
Satisfaction and Discharge
4.1 Satisfaction and Discharge of Indenture. This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving rights
of (as applicable) registration of transfer or exchange of Securities and
Coupons, if any, of any series herein expressly provided for), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(a) all Securities and Coupons theretofore authenticated and delivered
(other than (i) Securities and Coupons which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and (ii)
Securities and Coupons for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 10.3 have been
delivered to the Trustee for cancellation; or
(b) all such Securities and Coupons not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and;
the Company, in the case of (b) (i) , (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount
29
sufficient to pay and discharge the entire indebtedness on such Securities and
Coupons not theretofore delivered to the Trustee for cancellation, principal
(and premium, if any) and interest, if any, to the date of such deposit in the
case of Securities and Coupons which have become due and payable or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
4.2 Application of Trust Money. Subject to the provisions of the last
paragraph of Section 10.3, all money deposited with the Trustee pursuant to
Sections 4.1 and 4.3 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and Coupons, if any, and this Indenture,
to the payment, either directly or through any Paying Agent(including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and any
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required
by law.
4.3 Satisfaction, Discharge and Defeasances of Securities of Any
Series. If this Section is specified, as contemplated by Section 3.1, to be
applicable to Securities and Coupons, if any, of any series, the Company will be
deemed to have been Discharged (as defined below) from its obligations with
respect to Securities and Coupons, if any, of such series when
(a) either
(i) with respect to all Outstanding Securities and Coupons of such
series, the Company has deposited or caused to be deposited with the Trustee as
a trust fund specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities and Coupons, if any, of such series,
(1) money in an amount as will, or
(2) U.S. Government Obligations (as defined below) as will, together
with the predetermined and certain income to accrue thereon without
consideration of any reinvestment thereof, or
(3) a combination of (1) and (2) as will,
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(in each case, a written opinion with respect to (2) or (3) of independent
public accountants delivered to the Trustee), be sufficient to pay and discharge
the entire indebtedness on all Outstanding Securities and Coupons of such series
for principal (and premium, if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by the last paragraph of this Section
4.3, as the case may be; or
(ii) with respect to all Outstanding Securities and Coupons of such
series, the Company has properly fulfilled such other means of satisfaction and
discharge as is specified by Section 3.1 to be applicable to the Securities and
Coupons, if any, of such series; and
(b) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities and Coupons, if any, of such series;
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities and Coupons, if any, of any such
series have been complied with; and
(d) with respect to subsection 1(a) above, the Company shall have
delivered to the Trustee (A) a ruling directed to the Company and the Trustee
received from the United States Internal Revenue Service to the effect that the
Holders of the Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's exercise of its
option under this Section 4.3 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 and discharge had not occurred and (B) an Opinion of
Counsel to the same effect as the ruling described in clause (A) above and based
upon a change in law.
Any deposits with the Trustee referred to in Section 4.3(a) above shall
be irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. If any Outstanding Securities
and Coupons, if any, of such series are to be redeemed prior to their Stated
Maturity pursuant to any mandatory redemption provisions or in accordance with
any mandatory sinking fund requirement, the applicable escrow trust agreement
will provide therefor and the Company will make arrangements for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
4.4 Reinstatement. If the Trustee is unable to apply any money or U.S.
Government Obligations in accordance with Section 4.1 or 4.3 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
and Coupons, if any, of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.1 or 4.3 until such time as the
Trustee is permitted to apply all such money or U.S. Governmental Obligations in
accordance with Section 4.1 or 4.3; provided, however, that if the Company has
made any payment of interest on or principal of (and premium, if any, on) any
Securities and Coupons, if any, of such series because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
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such series of Securities and Coupons, if any, to receive such payment from the
money or U.S. Government Obligations held by the Trustee.
4.5 Definitions. The following terms, as used in this Article IV, shall
have the following meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and Coupons, if any, of the series as to which Section 4.3 is
specified as applicable as aforesaid and to have satisfied all the obligations
under this Indenture relating to the Securities and Coupons, if any, of such
series (and the Trustee, at the expense of the Company, will execute proper
instruments acknowledging the same), except (A) the rights of Holders thereof to
receive, from the trust fund described in Section 4.3(a)(i) above, payment of
the principal of (and premium, if any) and the interest, if any, on such
Securities and Coupons, if any, when such payments are due, (B) the Company's
obligations with respect to such Securities and Coupons, if any, under Sections
3.4, 3.5 and 3.6 (insofar as applicable to Securities of such series), 4.2, 10.2
and 10.3 (last paragraph only) and the Company's obligations to the Trustee
under Sections 6.7 and 6.10, and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, will survive such discharge.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and will also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specified payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE V
Remedies
5.1 Events of Default. "Event of Default", wherever used herein with
respect to Securities of any series, means any one of the following events,
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security for
such series:
(a) the failure of the Company to pay any installment of interest on
any of the Securities of that series, when and as the same shall become payable,
which failure shall have
32
continued unremedied for a period of 30 days (whether or not such payment is
prohibited under the provisions of Article XV);
(b) the failure of the Company to pay the principal of (and premium, if
any, on) any of the Securities of that series, when and as the same shall become
payable, whether at Stated Maturity as therein expressed, by call for
redemption, pursuant to any sinking fund, by acceleration as authorized by this
Indenture or otherwise (whether or not such payment is prohibited under the
provisions of Article XV);
(c) the failure of the Company to observe and perform any other of the
covenants or agreements on the part of the Company contained in this Indenture
(other then a covenant or agreement included in this Indenture solely for the
benefit of a series of Securities other than that series), which failure shall
have continued unremedied for a period of 90 days after written notice shall
have been given, by registered or certified mail, to the Company by the Trustee,
or shall have been given to the Company and the Trustee by the Holders of 25% or
more in principal amount of the Securities of that series then Outstanding,
specifying such failure and requiring the Company to remedy the same and stating
that such notice is a "Notice of Default" hereunder;
(d) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days;
(e) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or the
consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Company or for any substantial part of its property, or the
making by it of any assignment for the benefit of its creditors, or the
admission by the Company in writing of its inability to pay its debts generally
as such debts become due;
(f) an event of default, as defined in any mortgage, indenture
(including this Indenture), trust agreement or other instrument securing,
evidencing or providing for any Debt of the Company as a result of which Debt of
the Company in excess of $25,000,000 aggregate principal amount shall be or
become due and payable prior to the date on which the same would otherwise
become due and payable (except that such amount shall be $20,000,000 in respect
of a default on Securities of another series) and such acceleration shall not
have been rescinded or such Debt discharged within a period of 30 days after
notice to the Company; or
(g) any other Event of Default provided with respect to the Securities
of that series.
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5.2 Acceleration of Maturity; Rescission and Annulment. If an Event of
Default specified in Section 5.1(d) or (e) shall occur and be continuing, then
the principal of (or, with respect to a series of Original Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series), and any accrued and unpaid interest on and any additional amounts
payable under Section 10.4 in respect of the Securities shall immediately become
due and payable without any declaration or other act on the part of the Trustee
or any holders of the Securities. If one or more Events of Default specified in
Sections 5.1(a), (b), (c), (f) and (g) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(i) all overdue interest on all Securities of that series and any
additional amounts payable under Section 10.4,
(ii) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities or, in the case of Original Issue Discount Securities, the
Securities, Yield to Maturity, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if the Company shall fail for a period of 30 days to
pay any installment of interest on the Securities of any series or shall fail to
pay the principal of (and premium, if any, on) any of the Securities of any
series when and as the same shall become due and payable, whether at Stated
Maturity, or by call for redemption, pursuant to any sinking fund, by
declaration as authorized by this Indenture, or otherwise, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities and Coupons, if any, the whole amount then due and payable on such
Securities and Coupons, if any, for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities (or, in
the case of Original Issue Discount Securities, the Securities; Yield to
Maturity) and Coupons, if any, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default with respect to Securities and Coupons, if any,
of any series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
5.4 Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
5.5 Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or the Securities and Coupons,
if any, may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
35
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and Coupons, if any, in respect
of which such judgment has been recovered.
5.6 Application of Money Collected. Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, if any, upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under Section 6.7;
SECOND: to the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities in respect of
which or for the benefit of which such money has been-collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest, if
any, respectively; and
THIRD: the balance, if any, ratably to the Person or Persons entitled
thereto.
5.7 Limitation on Suits. No Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a) an Event of Default with respect to Securities of such series shall
have occurred and be continuing and such Holder has previously given written
notice to the Trustee of such continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have the right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture (including without limitation the provisions of Section 5.12) to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain
36
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
5.8 Unconditional Right of Holders to Receive Principal, Premium and
interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security or any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 3.7) any interest on such Security or Coupon on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
5.9 Restoration of Rights and Remedies. If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
5.10 Rights and Remedies Cumulative. Except as provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee
or of any Holder of any Securities to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or any acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
5.12 Control by Holders. The Holders of not less than a majority in
principal amount of the outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction,
37
(c) the Holders have provided the Trustee reasonable indemnity against
costs, expenses and liabilities to be incurred, and
(d) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
5.13 Waiver of Past Defaults. The Holders of not less than a majority
in principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect to
such series, and any Event of Default with respect to such series arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
5.14 Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any 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 Holder, or group of
Holders, holding in the aggregate more than 25% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE VI
The Trustee
6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default.
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(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision of this Indenture are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities of
any series, determined as provided in Sections 1.1, 1.4 and 5.12, relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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6.2 Notice of Defaults. If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the Holders of Securities of
such series notice of such default actually known to the Trustee as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 5.1(c) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof and if such default is corrected
within such period, the Trustee may conclude, consistent with the Trust
Indenture Act, that notice of such a default need not be provided to such
Holders of Securities. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
6.3 Certain Rights of Trustee. Subject to the provisions of Section
6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, 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 or direction of the Company shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) 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,
Officers' Certificate, other 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 any Holder; 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
40
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 examination
shall be paid by the Company or, if advanced by the Trustee, shall be repaid by
the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be required to give any bond or surety in
respect of the performance of its power and duties hereunder;
(j) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company;
(k) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default; and
(l) the Trustee shall not be deemed to have actual knowledge of an
Event of Default except for (i) a default under Sections 5.1(a) or 5.1(b)
hereof, or (ii) any other event of which the Trustee has "actual knowledge" and
which event with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture or event unless specifically
notified in writing of such event by the Company or any Holder; the term "actual
knowledge" means the actual fact or statement of knowing, without any duty to
make any investigation with regard thereto.
6.4 Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
6.5 May Hold Securities. The Trustee, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or
41
pledgee of Securities or warrants to purchase Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
6.6 Money Held in Trust. Money held by the Trustee or any Paying Agent
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee or any Paying Agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
6.7 Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, damage, claim, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The costs
and expenses of enforcing this right to indemnification shall also be paid by
the Company.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest, if any,
on particular Securities.
6.8 Disqualification; Conflicting Interests. If the Trustee has or
shall acquire any conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall comply with the relevant provisions thereof.
6.9 Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
42
6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the resigning Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(ii) the Trustee for a series shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by the Company or by
any Holder of Securities of such series, or
(iii) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and each successor Trustee
or Trustees shall comply with the applicable
43
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by giving
notice of such event to all Holders of Securities of such series as provided by
Section 1.6. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
office.
6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a Successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
44
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 such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
6.12 Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation into which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
6.13 Preferential Collection of Claims Against Company. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities or the Coupons, if any), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
6.14 Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by
45
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by, an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal or State authority or the
equivalent foreign authority, in the case of an Authenticating Agent who is not
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
46
This is one of the Securities of the series designated and issued under
the within-mentioned Indenture.
U.S. Bank National Association
As Trustee
By
---------------------------------------------------
As Authenticating Agent
By
---------------------------------------------------
Authorized [Officer] [Secretary]
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 1.2 and need not be accompanied by an
opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
7.1 Company To Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 15 and July 15 in each year
(commencing with the first January 15 or July 15 after the first issuance of
Securities pursuant to this Indenture), a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company or any Paying Agent as to the Holders of each series of the preceding
January 1 or be,
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, and
(c) such information concerning the Holders of Bearer Securities which
is known to the Company; provided, however, that the Company shall have no
obligation to investigate any matter relating to any Holder of a Bearer Security
or a Coupon;
47
provided, however, that so long as Trustee is the Security Registrar, no such
list shall be required to be furnished.
7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 3.12 of the Trust Indenture Act, regardless
of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 3.12(b) of the Trust Indenture Act.
7.3 Reports by Trustee.
(a) On or before May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit to the Holders of Securities, in the manner and to the extent
provided in Section 3.13(c) of the Trust Indenture Act, a brief report if
required by Section 3.13(a) of the Trust Indenture Act, dated as of a date no
more than 60 nor less than 45 days prior thereto. The Trustee also shall comply
with Section 3.13(b) of the Trust Indenture Act and shall transmit to Holders,
in the manner and to the extent provided is said Section 3.13(c), such other
reports, if any, as may be required pursuant to the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
7.4 Reports by Company. The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and reports,
and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission. Delivery of reports, information and
documents to the Trustee
48
under this Indenture is for information purposes only and the Trustee's receipt
of the foregoing shall not constitute notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
8.1 Company May Consolidate, Etc. Only on Certain Terms. The Company
shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and
the Company shall not permit any Person to consolidate with or merge into the
Company, unless:
(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest,
if any, on all the Outstanding Securities of all series and the performance of
every covenant of such Securities and this Indenture on the part of the Company
to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided or relating
to such transaction have been complied with.
8.2 Successor Corporation Substituted. Upon any consolidation by the
Company with or merger by the Company into any other corporation or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 8.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter, the predecessor corporation shall
be relieved of the performance and observance of all obligations and covenants
under this Indenture and the Securities (and any Coupons appertaining thereto),
including but not limited to the obligation to make payment of the principal of
(and premium, if any) and interest, if any, on all the Outstanding Securities of
all series (and
49
any Coupons appertaining thereto), and, in the event of such conveyance,
transfer or lease, may be liquidated and dissolved.
ARTICLE IX
Supplemental Indentures
9.1 Supplemental Indentures Without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities;
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
(c) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to less
than all series of Securities specifying the series to which such Event of
Default is applicable);
(d) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and with or without
interest coupons; to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized
denominations; provided that any such addition or change shall not adversely
affect the interests of the Holders of Securities of any series or any related
Coupons in any material respect;
(e) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is adversely affected by such change in or
elimination of such provision;
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1;
(g) 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(b);
50
(h) if allowed under applicable laws and regulations, to permit payment
in the United States of principal, premium or interest on Bearer Securities or
Coupons, if any;
(i) to provide for the issuance of uncertificated Securities of one or
more series in addition to or in place of certificated Securities; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture; provided such other provisions as may be made shall not
adversely affect the interests of the Holders of Securities of any series in any
material respect.
9.2 Supplemental Indentures With Consent of Holders. With the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or premium, if any,
on any installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate or amount (or manner of calculation of the
amount) of interest thereon or change the timing or reduce the amount payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or
adversely affect any right of repayment at the option of the Holder of any
Security, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date),
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture,
(c) change any obligation of the Company, with respect to Outstanding
Securities of a series, to maintain an office or agency in the places and for
the purposes specified in Section 10.2 for such series, or
(d) modify any of the provisions of this Section or Section 5.13 except
to increase any such percentage or to provide with respect to any particular
series the right to condition the effectiveness of any supplemental indenture as
to that series on the consent of the Holders of a specified percentage of the
aggregate principal amount of Outstanding Securities of
51
such series (which provision may be made pursuant to Section 3.1 without the
consent of any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to changes in
the references to the Trustee and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Sections
6.11(b) and 9.1(7).
For purposes of this Section 9.2, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
9.3 Execution of Supplemental Indentures. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
9.4 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
9.5 Conformity With Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust
Indenture Act.
9.6 Reference in Securities to Supplemental Indentures. Securities of
any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee
52
as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
10.1 Payment of Principal, Premium and Interest. The Company covenants
and agrees for the benefit of each series of Securities and Coupons, if any,
that it will duly and punctually pay the principal of (and premium, if any, on)
each of the Securities and Coupons, if any, of that series, and the interest, if
any, which shall have accrued thereon, in accordance with the terms of the
Securities and Coupons, if any, of such series and this Indenture.
10.2 Maintenance of Office or Agency. If Securities of a series are
issuable only as Registered Securities, until all the Securities of each such
series shall have been paid or payment thereof provided for, the Company will
maintain in each Place of Payment for such series an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, until all the Securities of each such
series shall have been paid or payment thereof provided for, the Company will
maintain (a) in The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related Coupons may be presented or surrendered for payment in the
circumstances described in this paragraph (and not otherwise), (b) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or agency where
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that series pursuant to Section 10.4); provided, however, that if the
Securities of that series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (c) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located in
Europe, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and the Holders of
the location, and any change in the location, of
53
any such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 10.4) at the London office
of the Trustee (or an agent with a London office appointed by the Trustee and
acceptable to the Company), and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands.
Presentation of Coupons for payment or other demands for payment of Bearer
Securities must be made outside the United States, and no payment of principal,
premium or interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States; provided, however, that payment of principal of and any premium
and interest on any Bearer Security (including any additional amounts payable on
Securities of such series pursuant to Section 10.4) shall be made at the office
of the Company's Paying Agent in The City of New York, if (but only if) (i)
despite the appointment of Paying Agents outside the United States, payment of
the full amount of such principal, premium, interest or additional amounts, as
the case may be, at the offices of all such Paying Agents maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions, (ii)
such payment is then permitted by applicable laws and (iii) in appointing a
Paying Agent in The City of New York, the Company would not suffer any fiscal or
other sanction under applicable laws as a result of such appointment or of any
payment being made through such Paying Agent.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any change
in the location of any such other office or agency.
10.3 Money for Securities Payments to be Held in Trust. If the Company
shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest, if any, on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest, if any,
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents or any series
of Securities, it will, at or prior to the opening of business on each due date
of the principal of (and premium, if any) or interest, if any, on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such
54
sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
Anything in this Section 10.3 to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security and
Coupons, if any, shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, shall at
the expense and at the written direction of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
10.4 Additional Amounts. If the Securities of a series provide for the
payment of additional amounts, the Company will pay to the Holder of any
Security of such series or any Coupon appertaining thereto additional amounts as
provided and subject to the conditions set forth therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or
payment of any related Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable) in any provisions
hereof shall not
55
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related Coupons who are United
States Aliens (as defined in the Securities) without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or Coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on an Officers' Certificate furnished pursuant to this Section.
10.5 Statement as to Compliance. Within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending nearest to
September 1, 2002), the Company shall deliver to the Trustee a certificate of
the principal executive officer, principal financial officer or principal
accounting officer of the Company, stating whether or not to the best knowledge
of such officer the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which such officer may have knowledge.
ARTICLE XI
Redemption of Securities
11.1 Applicability of Article. Securities (including any Coupons) of
any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series (including any Coupons
of any such series)) in accordance with this Article.
11.2 Election to Redeem; Notice to Trustee. The election of the Company
to redeem any Securities (including any Coupons) shall be evidenced by a Board
Resolution or by an action taken pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities
(including any Coupons) of any series, the Company shall, at least
56
45 days prior to the giving of notice of redemption in Section 11.4 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the aggregate principal amount of Securities (including
any Coupons) of such series to be redeemed. In the case of any redemption of
Securities (including any Coupons) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities (including any Coupons)
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
11.3 Selection by Trustee of Securities to be Redeemed. If less than
all the Securities (including any Coupons) of any series are to be redeemed, the
particular Securities (including any Coupons) to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities (including any Coupons) of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities (including any
Coupons) of that series or any integral multiple thereof) of the principal
amount of Securities (including any Coupons) of such series of a denomination
larger than the minimum authorized denomination for Securities (including any
Coupons) of that series.
In any case where Securities (including any Coupons) of such series are
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Security of such series. If the Securities of any series (including any Coupons)
to be redeemed consist of Securities having different Stated Maturities or
different rates of interest (or methods of computing interest), then the Company
may, in the written notice delivered to the Trustee pursuant to Section 11.2,
direct that the Securities (including any Coupons) of such series to be redeemed
shall be selected from among groups of such Securities having specified Stated
Maturities or rates of interest (or methods of computing interest) and the
Trustee shall thereafter select the particular Securities (including any
Coupons) to be redeemed in the manner set forth above from among the groups of
such Securities so specified.
The Trustee shall promptly notify the Company in writing of the
Securities (including any Coupons) selected for redemption and, in the case of
any Securities (including any Coupons) 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 (including any
Coupons) shall relate, in the case of any Securities (including any Coupons)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including any Coupons) which has been or is to be redeemed.
11.4 Notice of Redemption. Notice of redemption shall be given not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, as provided in Section 1.6.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the aggregate principal amount of the Securities to be
redeemed, the Place or Places of
57
Payment, that the Securities of such series are being redeemed at the option of
the Company pursuant to provisions contained in the terms of the Securities of
such series or in a supplemental indenture establishing such series, if such be
the case, together with a brief statement of the facts permitting such
redemption, that on the Redemption Date the Redemption Price will become due and
payable upon each Security redeemed, that payment will be made upon presentation
and surrender of the applicable Securities, that all Coupons, if any, maturing
subsequent to the date fixed for redemption shall be void, that any interest
accrued to the Redemption Date will be paid as specified in said notice, and
that on and after said Redemption Date any interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities of
any series are to be redeemed the notice of redemption shall specify the numbers
of the Securities of such series to be redeemed, and, if only Bearer Securities
of any series are to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities, the last date on which exchanges of Bearer Securities
for Registered Securities not subject to redemption may be made. In case any
Security of any 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 Redemption Date, upon surrender of such Security and
any Coupons appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with appropriate
Coupons will be issued, or, in the case of Registered Securities providing
appropriate space for such notation, at the option of the Holders, the Trustee,
in lieu of delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any, to be redeemed
at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
The Company will provide the Trustee not less than 45 days notice prior to the
Redemption Date if the Trustee is to provide such notice of redemption.
11.5 Deposit of Redemption Price. On or before the opening of business
on any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.3) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities and Coupons, if
any, which are to be redeemed on that date.
11.6 Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest, if any) such Securities
shall cease to bear interest and the Coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Security for redemption in accordance
with said notice, together with all Coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose
58
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 10.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of Coupons for such interest,
and provided, further, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by Coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 10.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of those Coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security (or, in the case of any Original Issue Discount Securities, the
Security's Yield to Maturity).
11.7 Security Redeemed in Part. Any Security (including any Coupons
appertaining thereto) which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security (including any
Coupons appertaining thereto) without service charge, a new Security (including
any Coupons appertaining thereto) or Securities (including any Coupons
appertaining thereto) of the same series and Stated Maturity and like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security (including any Coupons appertaining thereto) so surrendered.
ARTICLE XII
Sinking Funds
12.1 Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities (including any
Coupons) of a series except as
59
otherwise specified as contemplated by Section 3.1 for Securities (including any
Coupons) of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities (including any Coupons) of any series is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities (including any Coupons) of any
series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of Securities (including any Coupons) of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 12.2. Each sinking fund payment shall be applied to the redemption of
Securities (including any Coupons) of any series as provided for by the terms of
Securities (including any Coupons) of such series.
12.2 Satisfaction of Sinking Fund Payments With Securities. The Company
(1) may deliver Outstanding Securities (including any Coupons) of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities (including any Coupons) of a series which have been redeemed (or
called for redemption and for which the Redemption Price, together with accrued
interest, if any, has been deposited pursuant to Section 11.5), either at the
election of the Company pursuant to the terms of such Securities (including any
Coupons) or through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities (including any Coupons), in each case
in satisfaction of all or any part of any sinking fund payment with respect to
the Securities (including any Coupons) of such series required to be made
pursuant to the terms of such Securities (including any Coupons) as provided for
by the terms of such series; provided that such Securities (including any
Coupons) have not been previously so credited. Such Securities (including any
Coupons) shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities (including any Coupons) for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
12.3 Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities (including
any Coupons), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities (including any Coupons) of that
series pursuant to Section 12.2 and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also deliver
to the Trustee any Securities (including any Coupons) to be so delivered. If
such Officers' Certificate shall specify an optional amount to be added in cash
to the next ensuing mandatory sinking fund payment, the Company shall thereupon
be obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities
(including any Coupons) to be redeemed upon such sinking fund payment date in
the manner specified in Section 11.3 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of
such
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Securities (including any Coupons) shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Meetings of Holders of Securities
13.1 Purposes for Which Meetings May Be Called. If Securities of a
series are issuable as Bearer Securities, a meeting of Holders of Securities of
such series may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
13.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 13.1, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, Chicago,
Illinois or in London, England, as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 1.6, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 13.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, Chicago, Illinois or in
London, England for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
13.3 Persons Entitled To Vote at Meetings. To been titled to vote at
any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
13.4 Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of
61
Securities of such series. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 13.2(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Subject to the foregoing, at the reconvening of any such further adjourned
meeting, the Persons entitled to vote 25% in aggregate principal amount of the
Outstanding Securities of such series shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of the
reconvening of an adjourned meeting which was adjourned for lack of a quorum
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, and subject to the
provisions described in the next succeeding paragraph, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the lesser of (i) the
Holders of a majority in principal amount of the Outstanding Securities of that
series and (ii) 66 2/3% in principal amount of Outstanding Securities of such
series represented and voting at such meeting or adjourned meeting; provided,
however, that any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the lesser of (i) the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series and (ii) a
majority in principal amount of Outstanding Securities of such series
represented and voting at such meeting or adjourned meeting. Any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of
Securities of such series and the related Coupons, whether or not present or
represented at the meeting.
With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a specified
percentage of Outstanding Securities of all series affected thereby (acting as
one class), only the principal amount of Outstanding Securities of any series
represented at a meeting or adjourned meeting duly reconvened at which a quorum
was present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
13.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of
62
Securities of a series in regard to proof of the holding of Securities of such
series and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4 to
certify to the holder of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 13.2(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to
Section 13.2 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
13.6 Counting Votes and Recording Action of Meetings. The vote upon any
resolution submitted to any meeting of Holders of Securities of any series shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Securities of such series or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 13.2
and, if applicable, Section 13.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the
63
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE XIV
Immunity of Incorporators, Stockholders, Officers and Directors
14.1 Immunity of Incorporators, Stockholders, Officers and Directors.
No recourse shall be had for the payment of the principal of (or premium, if
any, on) or interest, if any, on, any Security of any series (or any Coupon
appertaining thereto), or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement of this Indenture, against any
incorporator, direct or indirect stockholder, officer or director, as such,
past, present or future, of the Company, or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities of all series (and any
Coupons appertaining thereto) are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, direct or indirect stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, because of the
incurring of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities of any series (or any Coupons appertaining thereto)
or to be implied here from or therefrom, and that all liability, if any, of that
character against every such incorporator, stockholder, officer and director is,
by the acceptance of the Securities of any series (or any Coupons appertaining
thereto), and as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Securities (and any Coupons
appertaining thereto), expressly waived and released.
ARTICLE XV
Subordination
15.1 Agreement to Subordinate. Anything to the contrary herein
notwithstanding, the Company covenants and agrees, and each Holder of Securities
of any series designated as Subordinated Debt (as defined below) (or any Coupons
appertaining thereto) by acceptance thereof likewise covenants and agrees, that
the indebtedness represented by the Securities of such series (and any Coupons
appertaining thereto) and the payment of the principal of (and premium, if any,
on) and interest, if any, on each and all of the Securities of such series (and
any Coupons appertaining thereto) shall be subordinate and junior in right of
payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full of all Senior Debt (as defined below), whether outstanding at
the date hereof or incurred after the date hereof, but shall in all respects
rank pari passu with all other Subordinated Debt.
64
15.2 No Payments to Holders of Securities in Certain Circumstances.
(a) In the event of any sale under or in accordance with any judgment
or decree rendered in any proceeding by or on behalf of any Holder of Securities
(or any Coupons appertaining thereto) or in the event of any distribution,
division or application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any part of the assets of the Company,
or the proceeds thereof, to creditors of the Company occurring by reason of any
liquidation, dissolution or winding up of the Company, or in the event of any
receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization
or other similar proceeding relative to the Company or its debts or properties,
then in any such event the holders of any and all Senior Debt shall be preferred
in the payment of their claims over the Holders of Securities (or any Coupons
appertaining thereto), and such Senior Debt shall be first paid and satisfied in
full before any payment or distribution of any kind or character, whether in
cash, property or securities (other than securities which are subordinate and
junior in right of payment to the payment of all Senior Debt which may at the
time be outstanding), shall be made upon the Securities (or any Coupons
appertaining thereto); and in any such event any dividend or distribution of any
kind or character, whether in cash, property or securities (other than in
securities which are subordinate and junior in right of payment to the payment
of all Senior Debt which may at the time be outstanding) which shall be made
upon or in respect of the indebtedness evidenced by the Securities (or any
Coupons appertaining thereto), or any renewals or extensions thereof, shall be
paid over to the holders of such Senior Debt, pro rata, for application in
payment thereof unless and until such Senior Debt shall have been paid and
satisfied in full; and
(b) In the event that pursuant to the provisions hereof any Security is
declared or becomes due and payable before its Stated Maturity because of an
occurrence of an Event of Default (under circumstances when paragraph (a) of
this Section 15.2 shall not be applicable), no amount shall be paid by the
Company in respect of the principal of or interest, if any, on the Securities
(or any Coupons appertaining thereto) in excess of current interest payments as
provided herein, except at the Stated Maturity thereof or in accordance with any
regular mandatory prepayments as contemplated by Section 3.1 for Securities of
any series (or any Coupons appertaining thereto) (all subject to paragraph (a)
of this Section 15.2), unless and until all Senior Debt outstanding at the time
such Security so becomes due and payable because of any such event shall have
been paid in full or payment thereof shall have been provided for in a manner
satisfactory to the holders of such outstanding Senior Debt; and
(c) without limiting the effect of any of the other provisions of this
Article XV, during the continuance of any default with respect to any Senior
Debt, no payment of principal, sinking fund, interest or premium shall be made
on or with respect to the indebtedness evidenced by the Securities (or any
Coupons appertaining thereto) or any renewals or extensions hereof, if either
(l) notice of such default in writing or by telegram has been given to the
Company by any holder or holders of any Senior Debt, provided that judicial
proceedings shall be commenced with respect to such default within 120 days
thereafter or (2) judicial proceedings shall be pending in respect of such
default.
65
The Company covenants and agrees, for the benefit of each and every
present and future holder of Senior Debt, that in the event that pursuant to the
provisions hereof any Security is declared or becomes due and payable because of
an occurrence of an Event of Default, then each holder of any Senior Debt then
outstanding shall have the right to declare immediately due and payable on
demand all or any part of such Senior Debt owing and payable to such holder,
regardless of any other maturity or terms of said Senior Debt; and if and when
any such default has occurred, or any notice of default under the terms hereof
may be served upon the Company, then in each such event the Company shall and
hereby agrees that it will immediately notify the holders of the Senior Debt of
such default or notice thereof, as the case may be.
15.3 Payments by Trustee or Holders of Securities to Holders of Senior
Debt. In the event that any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or securities, shall
be received by the Trustee or the Holders of Securities (or any Coupons
appertaining thereto) before all Senior Debt is paid in full, contrary to the
provisions of Section 15.2, such payment or distribution shall be paid over to
the holders of such Senior Debt or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued, ratably as aforesaid,
for application to the payment of all Senior Debt remaining unpaid until all
such Senior Debt shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders of
such Senior Debt.
15.4 Subrogation. Subject to the payment in full of all Senior Debt,
the Holders of Securities land any Coupons appertaining thereto) shall be
subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Debt until all amounts owing on the Securities (and any Coupons
appertaining thereto) shall be paid in full, and, as between the Company, its
creditors other than holders of Senior Debt, and the Holders of Securities (and
any Coupons appertaining thereto), no such payment or distribution made to the
holders of Senior Debt by virtue of this Article XV which otherwise would have
been made to the Holders of Securities (and any Coupons appertaining thereto)
shall be deemed to be a payment by the Company on account of the Senior Debt, it
being understood that the provisions of this Article XV are and are intended
solely for the purpose of defining the relative rights of the Holders of
Securities (and any Coupons appertaining thereto), on the one hand, and the
holders of Senior Debt, on the other hand.
15.5 Obligation of Company Unconditional. Nothing herein shall impair,
as between the Company and the Holders of Securities (and any Coupons
appertaining thereto), the right of the Holder of any Security or any Coupon,
which is absolute and unconditional, to receive payment of the principal (and
premium, if any) and interest, if any, thereon in accordance with their terms,
or shall prevent the Trustee or any Paying Agent from applying any moneys
deposited with it hereunder to the payment of principal of (or premium, if any)
or interest, if any, on any of the Securities (or any Coupons appertaining
thereto), in each case except as otherwise provided in this Article XV, nor
shall anything herein prevent any Holder of Securities (or any Coupons
appertaining thereto) from exercising all remedies otherwise permitted by
applicable law or hereunder upon default hereunder, subject to the rights, if
any, of holders of Senior Debt
66
as herein provided. Each and every holder of Securities (or any Coupons
appertaining thereto) by acceptance thereof shall undertake and agree for the
benefit of each holder of Senior Debt to execute, verify, deliver and file any
proofs of claim, consents, assignments or other instruments which any holder of
Senior Debt may at any time require in order to prove and realize upon any
rights or claims pertaining to the Securities (or any Coupons appertaining
thereto) and to effectuate the full benefit of the subordination contained in
this Article XV.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee and the Holders of Securities (or any Coupons
appertaining thereto) 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 Company is
pending or upon a certificate of the liquidating trustee or agent or other
person making any payment or distribution to the Trustee or to the Holders of
Securities (or any Coupons appertaining thereto) for the purpose of ascertaining
the persons entitled to participate in such payment or distribution, the holders
of the Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article XV. In the event that the Trustee
determines, in good faith, that further evidence is required with respect to the
right of any person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article XV, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such person, as to the extent to which such person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such person under this Article XV, and if such
evidence is not furnished, the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
15.6 Payments on Securities Permitted. Nothing contained in this
Article XV or elsewhere in this Indenture, or in any of the Securities (or any
Coupons appertaining thereto), shall (a) affect the obligation of the Company to
make, or prevent the Company from making, at any time except in the event of any
event specified in Section 15.2, payments at any time of principal of (or
premium, if any) or interest, if any, on the Securities of any series (or any
Coupons appertaining thereto) or of any sinking fund payments with respect to
the Securities of any series, or (b) prevent the application by the Trustee or
any Paying Agent of any moneys held by the Trustee or such Paying Agent in trust
for the benefit of the holders of Securities of any series (and any Coupons
appertaining thereto) as to which notice of redemption shall have been mailed or
published at least once prior to the happening of an event specified in
paragraph (b) or (c) of Section 15.2 to the payment of or on account of the
principal of (and premium, if any, on) and interest, if any, on such Securities
(and any Coupons appertaining thereto), or (c) prevent the application by the
Trustee or any Paying Agent of any moneys deposited prior to the happening of
any event specified in paragraph (b) or (c) of Section 15.2 with the Trustee or
such Paying Agent in trust for the purpose of paying a specified installment or
installments of interest on the Securities of any series (or any Coupons
appertaining thereto), to the payment of such installments of interest on the
Securities of any series (or any Coupons appertaining thereto).
67
15.7 Effectuation of Subordination by Trustee. Each holder of
Securities (or any Coupons appertaining thereto), by his acceptance thereof,
authorizes and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee his attorney-in-fact for any and all such
purposes.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and, with respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of Senior Debt shall be
read into this Indenture against the Trustee. Subject to the provisions of
Section 6.1, the Trustee shall not be liable to any holder of Senior Debt if it
shall mistakenly pay over or deliver to holders of Securities (or any Coupons
appertaining thereto), the Company or any other person moneys or assets to which
any holder of Senior Debt shall be entitled by virtue of this Article XV or
otherwise.
15.8 Knowledge of Trustee. Notwithstanding the provisions of this
Article XV or any other provisions of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which 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 from the Company, any Holder, any Paying Agent or the holder or
representative of any class of Senior Debt.
Prior to the receipt of any such written notice, the Trustee, subject
to the provisions of Section 6.1, shall be entitled in all respects to assume
that no such facts exist; provided, that if on a date not less than one day
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 of or interest, if any, on any Securities (or any Coupons appertaining
thereto)), the Trustee shall not have received with respect to such moneys the
notice provided for in this Section 15.8, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
15.9 Trustee May Hold Senior Debt. The Trustee shall be entitled to all
the rights set forth in this Article XV with respect to any Senior Debt at the
time held by it, to the same extent as any other holder of Senior Debt, and
nothing in Section 6.13 or elsewhere in this Indenture shall deprive the Trustee
of any of its rights as such holder.
15.10 Rights of Holders of Senior Debt Not Impaired. No right of any
present or future holder of any Senior Debt 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 Company or by any non-compliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
68
15.11 Rights and Obligations Subject to Power of Court. The right of
the holders of Senior Debt and the obligations of the Trustee and the Holders of
Securities (and any Coupons appertaining thereto) set forth in this Article XV
are subject to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights conferred in this Indenture upon the
Senior Debt and the holders thereof with respect to the Securities (and any
Coupons appertaining thereto) and the holders thereof by a plan of
reorganization under applicable bankruptcy law.
15.12 Definitions. The following terms shall have the following
meanings:
"Senior Debt" means all Debt of the Company except Subordinated Debt in
respect of such Debt.
"Subordinated Debt" means any Debt which is subordinate and junior in
right of payment to any other Debt of the Company by the terms of the instrument
creating or evidencing such Subordinated Debt.
69
EXHIBIT A
[FORMS OF CERTIFICATION]
A-1
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER
SECURITY OR TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
EXHIBIT A.1. COSTCO WHOLESALE CORPORATION
[Insert title or sufficient description
of Securities to be delivered]
(the "Securities")
This is to certify that, as of the date hereof, and except as set forth
below, the above-referenced Securities held by you for our account are owned by
(i) (a) persons that are not individual citizens or residents of the United
States, (b) a corporation or partnership organized in or under the laws of the
United States or any state thereof or the District of Columbia, (c) an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source or (d) a trust the administration of which is subject
to the primary supervision of a court within the United States and for which one
or more United States fiduciaries have the authority to control all substantial
decisions ("United States persons"), (ii) United States persons that (a) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12 (c) (1) (v) ) ("financial institutions")
purchasing for their own accounts or for resale or (b) acquired the Securities
through foreign branches of United States financial institutions and that hold
the Securities through such United States financial institutions on the date
hereof (and in the case of either (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the issuer or the issuer's agent that it will comply with, the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii)
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition, if we are a financial institution described in this clause (iii)
(whether or not also described in clause (i) or (ii)), we certify that we have
not acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions, the Commonwealth of Puerto Rico, and other areas subject to its
jurisdiction.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date and, in the absence of
any such notification, it may be assumed that this Certification applies as of
such date.
This certification excepts and does not relate to $____________
principal amount of such Securities, in respect of which we are not able to
certify as above and as to which we understand
A-2
exchange and delivery of definitive Securities (or, if relevant, exercise of any
rights or collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
-------------------------------------------------------
[To be dated no earlier than 15 days prior
to the Exchange Date or the first interest
payment date prior to the Exchange Date,
as relevant]
By:
-------------------------------------------------------
As, or as agent for, the beneficial owner(s)
of the Securities to which this certificate
relates.
A-3
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR OR CLEARSTREAM BANKING, SOCIETE
ANONYME IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
COSTCO WHOLESALE CORPORATION
[Insert title or sufficient description
of Securities to be delivered]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations"), substantially
as set forth in the Temporary Global Security with respect to the Securities, as
of the date hereof, $____________ principal amount of the above-captioned
Securities is owned by (i) (a) persons that are not individual citizens or
residents of the United States, (b) a corporation or partnership organized in or
under the laws of the United States or any state thereof or the District of
Columbia, (c) an estate or trust the income of which is subject to United States
federal income taxation regardless of its source or (d) a trust the
administration of which is subject to the primary supervision of a court within
the United States and for which one or more United States fiduciaries have the
authority to control all substantial decisions ("United States persons"), (ii)
United States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
("financial institutions") purchasing for their own accounts or for resale or
(b) acquired the Securities through foreign branches of United States financial
institutions and that hold the Securities through such United States financial
institutions on the date hereof (and in the case of either (a) or (b), each such
United States financial institution has agreed, on its own behalf or through its
agent, that we may advise the issuer or the issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) financial institutions for purposes of resale during the restricted period
(as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which
financial institutions described in this clause (iii) whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
A-4
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the Temporary Global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such.
*Dated: _____________, 200_ Yours faithfully,
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
Brussels office as operator
of the Euro-clear System
or
CLEARSTREAM BANKING, SOCIETE ANONYME
By:___________________________________
* [Not earlier than the Exchange
Date or the first interest payment
date prior to the Exchange Date,
as relevant.]
A-5