<Page>
Exhibit 4.2
CONFORMED
- --------------------------------------------------------------------------------
CENDANT CORPORATION
TO
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
Trustee
- --------------------------------------------------------------------------------
Indenture
Dated as of February 24, 1998
-----------------------------
CONVERTIBLE AND NON-CONVERTIBLE
SENIOR DEBT SECURITIES
- --------------------------------------------------------------------------------
<Page>
CENDANT CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of January , 1998
--------------------------------------------------
Trust Indenture Indenture
Act Section
- --------------- ---------
ss. 310(a)(1) ......................................... 607(a)
(a)(2) ......................................... 607(a)
(b) ......................................... 608
ss. 312(c) ......................................... 701
ss. 314(a) ......................................... 703
(a)(4) ......................................... 1004
(c)(1) ......................................... 102
(c)(2) ......................................... 102
(e) ......................................... 102
ss. 315(b) ......................................... 601
ss. 316(a)(last
sentence) ......................................... 101 ("Outstanding")
(a)(1)(A) ......................................... 502, 512
(a)(1)(B) ......................................... 513
(b) ......................................... 508
(c) ......................................... 104(e)
ss. 317(a)(1) ......................................... 503
(a)(2) ......................................... 504
(b) ......................................... 1003
ss. 318(a) ......................................... 111
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<Page>
TABLE OF CONTENTS(1)
--------------------
<Table>
<Caption>
Page
----
PARTIES
RECITALS OF THE COMPANY
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........................................1
Section 1.1 Definitions...................................................................1
Section 1.2 Compliance Certificates and Opinions.........................................11
Section 1.3 Form of Documents Delivered to Trustee.......................................12
Section 1.4 Acts of Holders..............................................................12
Section 1.5 Notices, Etc. to Trustee and Company.........................................14
Section 1.6 Notice to Holders; Waiver....................................................14
Section 1.7 Effect of Headings and Table of Contents.....................................15
Section 1.8 Successors and Assigns.......................................................15
Section 1.9 Separability Clause..........................................................15
Section 1.10 Benefits of Indenture........................................................15
Section 1.11 Governing Law................................................................15
Section 1.12 Legal Holidays...............................................................16
Section 1.13 Trust Indenture Act..........................................................16
ARTICLE II SECURITY FORMS.................................................................................16
Section 2.1 Forms Generally..............................................................16
Section 2.2 Form of Trustee's Certificate of Authentication..............................17
Section 2.3 Securities Issuable in Global Form...........................................17
ARTICLE III THE SECURITIES.................................................................................18
Section 3.1 Amount Unlimited; Issuable in Series.........................................18
Section 3.2 Denominations................................................................21
Section 3.3 Execution, Authentication, Delivery and Dating...............................22
Section 3.4 Temporary Securities.........................................................24
Section 3.5 Registration, Registration of Transfer and Exchange..........................26
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.............................28
Section 3.7 Payment of Interest; Interest Rights Preserved; Optional Interest Reset......29
Section 3.8 Optional Extension of Stated Maturity........................................32
Section 3.9 Persons Deemed Owners........................................................32
Section 3.10 Cancellation.................................................................33
Section 3.11 Computation of Interest......................................................33
Section 3.12 Currency and Manner of Payments in Respect of Securities.....................34
Section 3.13 Appointment and Resignation of Successor Exchange Rate Agent.................37
Section 3.14 Designation as Senior Indebtedness...........................................37
ARTICLE IV SATISFACTION AND DISCHARGE.....................................................................38
Section 4.1 Satisfaction and Discharge of Indenture......................................38
Section 4.2 Application of Trust Money...................................................39
i
<Page>
ARTICLE V REMEDIES.......................................................................................39
Section 5.1 Events of Default............................................................39
Section 5.2 Acceleration of Maturity; Rescission and Annulment...........................40
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee..............42
Section 5.4 Trustee May File Proofs of Claim.............................................42
Section 5.5 Trustee May Enforce Claims Without Possession of Securities..................43
Section 5.6 Application of Money Collected...............................................43
Section 5.7 Limitation on Suits..........................................................44
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.................................................................45
Section 5.9 Restoration of Rights and Remedies...........................................45
Section 5.10 Rights and Remedies Cumulative...............................................45
Section 5.11 Delay or Omission Not Waiver.................................................45
Section 5.12 Control by Holders...........................................................46
Section 5.13 Waiver of Past Defaults......................................................46
Section 5.14 Waiver of Stay or Extension Laws.............................................47
ARTICLE VI THE TRUSTEE....................................................................................47
Section 6.1 Notice of Defaults...........................................................47
Section 6.2 Certain Rights of Trustee....................................................47
Section 6.3 Trustee Not Responsible for Recitals or Issuance of Securities...............48
Section 6.4 May Hold Securities..........................................................49
Section 6.5 Money Held in Trust..........................................................49
Section 6.6 Compensation and Reimbursement...............................................49
Section 6.7 Corporate Trustee Required; Eligibility; Conflicting Interest................49
Section 6.8 Resignation and Removal; Appointment of Successor............................50
Section 6.9 Acceptance of Appointment by Successor.......................................51
Section 6.10 Merger, Conversion, Consolidation or Succession to Business..................52
Section 6.11 Appointment of Authenticating Agent..........................................53
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................................................54
Section 7.1 Disclosure of Names and Addresses of Holders.................................54
Section 7.2 Reports by Trustee...........................................................54
Section 7.3 Reports by Company...........................................................55
ARTICLE VIII MERGER, CONSOLIDATION AND SALE OF ASSETS...........................................................55
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.........................55
Section 8.2 Successor Person Substituted.................................................56
Section 8.3 Securities to Be Secured in Certain Events...................................56
ARTICLE IX SUPPLEMENTAL INDENTURES........................................................................57
Section 9.1 Supplemental Indentures Without Consent of Holders...........................57
Section 9.2 Supplemental Indentures with Consent of Holders..............................58
Section 9.3 Execution of Supplemental Indentures.........................................59
Section 9.4 Effect of Supplemental Indentures............................................59
Section 9.5 Conformity with Trust Indenture Act..........................................59
ii
<Page>
Section 9.6 Reference in Securities to Supplemental Indentures...........................59
Section 9.7 Notice of Supplemental Indentures............................................60
ARTICLE X COVENANTS......................................................................................60
Section 10.1 Payment of Principal, Premium, if any, and Interest..........................60
Section 10.2 Maintenance of Office or Agency..............................................60
Section 10.3 Money for Securities Payments to Be Held in Trust............................62
Section 10.4 Statement as to Compliance...................................................63
Section 10.5 Additional Amounts...........................................................63
Section 10.6 Payment of Taxes and Other Claims............................................64
Section 10.7 Corporate Existence..........................................................64
Section 10.8 Waiver of Certain Covenants..................................................64
ARTICLE XI REDEMPTION OF SECURITIES.......................................................................65
Section 11.1 Applicability of Article.....................................................65
Section 11.2 Election to Redeem; Notice to Trustee........................................65
Section 11.3 Selection by Trustee of Securities to Be Redeemed............................65
Section 11.4 Notice of Redemption.........................................................65
Section 11.5 Deposit of Redemption Price..................................................66
Section 11.6 Securities Payable on Redemption Date........................................67
Section 11.7 Securities Redeemed in Part..................................................67
ARTICLE XII SINKING FUNDS.......................................................................................68
Section 12.1 Applicability of Article.....................................................68
Section 12.2 Satisfaction of Sinking Fund Payments with Securities........................68
Section 12.3 Redemption of Securities for Sinking Fund....................................68
ARTICLE XIII REPAYMENT AT OPTION OF HOLDERS.....................................................................69
Section 13.1 Applicability of Article.....................................................69
Section 13.2 Repayment of Securities......................................................70
Section 13.3 Exercise of Option...........................................................70
Section 13.4 When Securities Presented for Repayment Become Due and Payable...............70
Section 13.5 Securities Repaid in Part....................................................71
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE..................................................................71
Section 14.1 Company's Option to Effect Defeasance or Covenant Defeasance.................71
Section 14.2 Defeasance and Discharge.....................................................72
Section 14.3 Covenant Defeasance..........................................................72
Section 14.4 Conditions to Defeasance or Covenant Defeasance..............................73
Section 14.5 Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions...............................................74
Section 14.6 Reinstatement................................................................75
ARTICLE XV MEETINGS OF HOLDERS OF SECURITIES....................................................................75
Section 15.1 Purposes for Which Meetings May Be Called....................................75
Section 15.2 Call, Notice and Place of Meetings...........................................76
Section 15.3 Persons Entitled to Vote at Meetings.........................................76
iii
<Page>
Section 15.4 Quorum; Action...............................................................76
Section 15.5 Determination of Voting Rights; Conduct and Adjournment
of Meetings..................................................................77
Section 15.6 Counting Votes and Recording Action of Meetings..............................78
</Table>
TESTIMONIUM
SIGNATURES AND SEALS
EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE
BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
EXHIBIT A-2 FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
(1) NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO
BE A PART OF THE INDENTURE.
iv
<Page>
PARTIES
INDENTURE, dated as of February 24, 1998, between CENDANT
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
6 Sylvan Way, Parsippany, New Jersey 07054, and THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, a New York banking corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein called the
"Trustee") having its principal office at One Liberty Plaza, 23rd Floor, New
York, New York 10006.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), which may or may not be convertible into or exchangeable for any
securities of any Person (including the Company), to be issued in one or more
series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
<Page>
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" 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
(4) 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 in Article Three, are defined
in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" has the meaning specified in Section
1005.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Beneficial Owner" of shares of Capital Stock means, with
respect to any Person, any such shares:
(a) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the sole or shared right to
vote or dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act or pursuant
to any successor provision), including, but not limited to, pursuant to
any agreement, arrangement or understanding, whether or not in writing;
PROVIDED, that a Person shall not be deemed the "Beneficial Owner" of,
or
2
<Page>
to "Beneficially Own", any security under this subparagraph as a result
of an agreement, arrangement or understanding to vote such security
that both (y) arises solely from a revocable proxy given in response to
a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the rules and regulations
promulgated under the Exchange Act and (z) is not reportable by such
person on Schedule 13D promulgated under the Exchange Act (or any
comparable or successor report) without giving effect to any applicable
waiting period, or Exchange Act (or any comparable or successor report)
without giving effect to any applicable waiting period; or
(b) which are Beneficially Owned, directly or indirectly, by
any other person (or any Affiliate or Associate thereof) with which
such person (or any of such person's Affiliates or Associates) has any
agreement, arrangement or understanding, whether or not in writing, for
the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (a) above)
or disposing of any Capital Stock;
PROVIDED, that (i) no director or officer of the Corporation (nor any
Affiliate or Associate of any such director or officer) shall, solely
by reason of any or all of such directors or officers acting in their
capacities as such, be deemed the "Beneficial Owner" of or to
"Beneficially Own" any shares of Capital Stock that are Beneficially
Owned by any other such director or officer, and (ii) no person shall
be deemed the "Beneficial Owner" of or to "Beneficially Own" any shares
of Capital Stock held in any voting trust, any employee stock ownership
plan or any similar plan or trust if such person does not possess the
right to vote, to direct the voting of or to be consulted with respect
to the voting of such shares.
For the purposes of this definition, the terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms
in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as
amended as in effect on June 14, 1996 (the term "registrant" in said
Rule 12b-2 meaning in this case the Company).
"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 (or a committee of the Board of Directors empowered to
exercise all of the powers of 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" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York or in the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock of the Company or any Subsidiary.
"CEDEL S.A." means Cedel, S.A., or its successor.
"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
3
<Page>
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties at
such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office on the date of execution of this
Indenture is located at One Liberty Plaza, N.Y., N.Y., except that with respect
to presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"Currency Conversion Date" has the meaning specified in
Section 312(d).
"Currency Conversion Event" means the cessation of use of (i)
a Foreign Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Debt" means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
4
<Page>
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 312(f).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or
a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of
the United States.
"Government Obligations" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, securities
which are (i) direct obligations of the government which issued the Currency in
which the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such Currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
5
<Page>
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of any particular series of Securities established
as contemplated by Section 301; PROVIDED, HOWEVER, that, if at any time more
than one Person is acting as Trustee under this instrument, "Indenture" shall
mean, with respect to any one or more series of Securities for which such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Issue Date" with respect to a Security means the date of
first issuance of such Security under this Indenture.
"Lien" means any pledge, mortgage, lien, charge, encumbrance
or security interest except that a Lien shall not mean any license or right to
use intellectual property of the Company or a Subsidiary granted by the Company
or a Subsidiary.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying
6
<Page>
rate for such Foreign Currency for cable transfers quoted in New York City as
certified for customs purposes by the Federal Reserve Bank of New York and (iii)
for any conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either New York City,
London or any other principal market for Dollars or such purchased Foreign
Currency, in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another principal
market for the Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
"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 declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, 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, including an employee of the Company, and who
shall be acceptable to the Trustee.
"Optional Reset Date" has the meaning specified in Section
307(b).
"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 pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; PROVIDED that, if such
7
<Page>
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (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, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above), of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any, on) or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
8
<Page>
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any, on) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupons
appertains, as the case may be.
"Principal Property" means any reservation centers,
leaseholds, telecommunications contracts, computerized systems contracts,
intellectual property rights, or Franchise Contracts, owned by the Company or
any Subsidiary and located in the United States, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 5% of Total Assets, other
than any such property which, in the opinion of the Board of Directors, is not
of material importance to the total business conducted by the Company and its
Subsidiaries, taken as a whole.
"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.
"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.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice- chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller 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.
9
<Page>
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; PROVIDED, HOWEVER, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subordinated Indenture" means the indenture to be entered
into between the Company and The Bank of Nova Scotia Trust Company of New York
in connection with the January 1998 shelf registration of the Company.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Total Assets" means the total amount of assets (less
applicable reserves and other properly deductible items), as set forth on the
most recent balance sheet of the Company and its consolidated Subsidiaries and
computed in accordance with generally accepted accounting principles.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation,
10
<Page>
partnership or other entity created or organized in or under the laws of the
United States or an estate or trust the income of which is subject to United
States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"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".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
Section 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 (including any covenant
compliance with which constitutes a condition precedent) 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, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, including,
without limitation, the certificate of authentication provided pursuant to
Section 303, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
11
<Page>
Section 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.
Section 1.4 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agents 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 Fifteen, 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 or record or both are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (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, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
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 1506.
(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 by law to take acknowledgments of deeds, certifying
that the individual
12
<Page>
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 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 Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) 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 a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by
the Trustee to be satisfactory, 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 certificate 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, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may also be proved in any other manner which the
Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to 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. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be 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 eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
13
<Page>
Section 1.5 NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first- class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such 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. In any case where notice to
Holders of Registered Securities 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 of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
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 any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given
14
<Page>
with the approval of the Trustee 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 such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10 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, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939,
AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE
EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
15
<Page>
Section 1.12 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or 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 any Security or coupon other than a provision
in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal (and
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 sinking fund payment date, or at the Stated Maturity or Maturity; PROVIDED
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
Section 1.13 TRUST INDENTURE ACT.
This Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
ARTICLE II
SECURITY FORMS
Section 2.1 FORMS GENERALLY.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons 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 or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel- engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
16
<Page>
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK,
as Trustee
By________________________
Authorized Officer
Section 2.3 SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(8) of Section 301, any 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 of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased 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 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 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 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 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 102 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 Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contem plated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
17
<Page>
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL as specified by the common
depositary for such global securities.
ARTICLE III
THE SECURITIES
Section 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture and the Subordinated Indenture
is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date or dates shall be determined, and the basis upon which
interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any, on) and
18
<Page>
any interest on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange
and, if different than the location specified in Section 106, the place
or places where notices or demands to or upon the Company in respect of
the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, the
Currency in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(11) if other than Dollars, the Currency in which payment of
the principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of
the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any
of the provisions of Section 312;
(12) whether the amount of payments of principal of (and
premium, if any, on) or interest on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limita tion, on one or
more Currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency other
than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election
Date), and the terms
19
<Page>
and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency in which
such Securities are denomi nated or stated to be payable and the
Currency in which such Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(14) the designation of the initial Exchange Rate Agent, if
any;
(15) any provisions in modification of, in addition to or in
lieu of the provisions of Article Fourteen that shall be applicable to
the Securities of the series;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, 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 permanent global form with or
without coupons and, if so, whether benefi cial owners of interests in
any such permanent 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 any such exchanges may
occur, if other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of the series, and the circumstances under
which and the place or places where such exchanges may be made and if
Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(19) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(20) 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 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 304;
20
<Page>
(21) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants or upon the conversion or exchange of other
securities, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the Securities of
the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or 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,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 DENOMINATIONS.
All Securities shall be issuable in such denominations as
shall be specified as contem plated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such Series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
21
<Page>
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or a Vice
President, under its corporate seal reproduced thereon attested by its Secretary
or an Assistant Secretary. The signature of any of these officers on the
Securities or coupons may be the manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or 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
or coupons.
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 coupon 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 such Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such 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 Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivered in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If not all
the Securities of any series are to be issued at one time and if the Board
Resolution 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 determining terms of particular Securities of
such series such as interest rate, maturity date, date of issuance and date from
which interest shall accrue.
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 TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
22
<Page>
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with (except for
the federal securities laws, the Trust Indenture Act of 1939, as
amended, and the securities or blue sky laws of the various states, as
to which no opinion need be expressed) and that authentication and
delivery of such Securities and any coupons and the execution and
delivery of the supplemental indenture, if any, by the Trustee will not
violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate
action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will
not contravene the articles of incorporation or by-laws of the Company
or result in any violation of any of the terms or provisions of any law
or regulation or of any indenture, mortgage or other agreement known to
such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if less than all the Securities of any series are to
be issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs
prior to or at the time of issuance of each Security, but such documents shall
be delivered prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immuni ties under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
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 substan tially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this
23
<Page>
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 310 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 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 denomina
tion, substantially of the tenor of the definitive Securities in lieu of which
they are issued, in registered form or, if authorized, in bearer form with one
or more coupon or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged 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 or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of 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 shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL S.A., 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 (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, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary 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
24
<Page>
portion of such temporary global 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 temporary global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary global
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL S.A. as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture (or in such other form as may be established pursuant to
Section 301); and PROVIDED FURTHER that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the require ments of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL S.A., as the case may be, to request such exchange on his
behalf and delivers to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, 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 Euroclear or CEDEL S.A. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global Security 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 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL
S.A. on such Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other form as may be established pursuant to
Section 301), 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 on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL S.A., as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to
this Indenture (or in such other form as may be established pursuant to Section
301). Notwith standing anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section and of the third
paragraph of Section 303 of this Indenture and the interests of the Persons who
are the beneficial owners
25
<Page>
of the temporary global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same series and of like
tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal or
interest owing with respect to a beneficial interest in a temporary global
Security will be made unless and until such interest in such temporary global
Security shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and CEDEL S.A. 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 1003.
Section 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the "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 in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, 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 may be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at 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. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination 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,
any such permitted 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 coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity
26
<Page>
as they 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 1002, 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 a permitted 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 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomi nation, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the Common Depositary or such other
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
permanent global 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 permanent global 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 301, 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 to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and PROVIDED FURTHER that
no Bearer Security delivered in exchange for a portion of a permanent 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
permanent global 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
27
<Page>
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be, 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 permanent global
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 Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or 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 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, to register
the transfer of or to exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the selection for
redemption of Securities of that series under Section 1103 or 1203 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, or
(iv) to issue, to register the transfer of or to exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security or a 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, or, in case
any such mutilated 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,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
28
<Page>
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains (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, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains, or, in case any such 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, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains, pay such Security or coupon.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, 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.
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED; OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301
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
such Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest at
the office or agency of the Company maintained for such purpose
pursuant to Section 1002; PROVIDED, HOWEVER, that each installment of
interest on any Registered Security may at the Company's option be paid
by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309,
to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located in the
United States.
29
<Page>
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and CEDEL S.A. with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
CEDEL S.A. to credit the interest received by it in respect of such permanent
global Security to the accounts of the beneficial owners thereof.
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 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 and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the 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 Registered 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 in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrange ments
satisfactory to the Trustee for such deposit on or 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 be not more
than 15 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 pay ment. 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 given in the manner provided in Section 106, 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 given, such Defaulted Interest shall be paid to the
Persons in whose name the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
30
<Page>
(2) 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.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable)
on any Security of such series may be reset by the Company on the date
or dates specified on the face of such Security (each an "Optional
Reset Date"). The Company may exercise such option with respect to such
Security by notifying the Trustee of such exercise at least 50 but not
more than 60 days prior to an Optional Reset Date for such Note. Not
later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of
any such Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if
so (i) such new interest rate (or such new spread or spread multiplier,
if applicable) and (ii) the provisions, if any, for redemption during
the period from such Optional Reset Date to the next Optional Reset
Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
31
<Page>
Subject to the foregoing provisions of this Section and
Section 305, 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.
Section 3.8 OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate applicable to the Extension
Period and (iv) the provisions, if any, for redemption during such Extension
Period. Upon the Trustee's transmittal of the Extension Notice, the Stated
Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
Section 3.9 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, on) and (subject to Sections 305
and 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and
32
<Page>
none of the Company, the Trustee or 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 bearer of any Bearer Security and the
bearer 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 coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
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.
Section 3.10 CANCELLATION.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to 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
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
Section 3.11 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
33
<Page>
Section 3.12 CURRENCY AND MANNER OF PAYMENTS IN RESPECT
OF SECURITIES.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any
series not permitting the election provided for in paragraph (b) below
or the Holders of which have not made the election provided for in
paragraph (b) below, and with respect to Bearer Securities of any
series, except as provided in paragraph (d) below, payment of the
principal of (and premium, if any, on) and interest, if any, on any
Regis tered or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the
case may be, is payable. The provisions of this Section 312 may be
modified or superseded with respect to any Securities pursuant to
Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of
principal of (and premium, if any, on) or interest, if any, on such
Registered Securities in any of the Currencies which may be designated
for such election by delivering to the Trustee a written election with
signature guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election
will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to
the Trustee (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date
and no such change of election may be made with respect to payments to
be made on any Registered Security of such series with respect to which
an Event of Default has occurred or with respect to which the Company
has deposited funds pursuant to Article Four or with respect to which a
notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee not later than the
close of business on the applicable Election Date will be paid the
amount due on the applicable payment date in the relevant Currency as
provided in Section 312(a). The Trustee shall notify the Exchange Rate
Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant to
Section 301, not later than the fourth Business Day after the Election
Date for each payment date for Registered Securities of any series, the
Exchange Rate Agent will deliver to the Company a written notice
specifying, in the Currency in which Registered Securi ties of such
series are payable, the respective aggregate amounts of principal of
(and premium, if any, on) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to
which the Holders of Registered Securities of such series shall have
elected to be paid in another Currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above has been
provided for pursuant to Section 301 and if at least one Holder has
made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered
Securi ties an Exchange Rate Officer's Certificate in respect of the
Dollar or Foreign Currency payments
34
<Page>
to be made on such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency
as provided in paragraph (b) above shall be determined by the Company
on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each
payment date, and such determination shall be conclusive and binding
for all purposes, absent manifest error.
(d) If a Currency Conversion Event occurs with respect to a
Foreign Currency in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any, on) and interest, if any, on the
applicable Securities denomi nated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used
(the "Currency Conversion Date"), the Dollar shall be the Currency of
payment for use on each such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holders of
such Securities with respect to such payment date shall be, in the case
of a Foreign Currency other than a currency unit, the Dollar Equivalent
of the Foreign Currency or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g)
below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b)
above, and a Currency Conversion Event occurs with respect to such
elected Currency, such Holder shall receive payment in the Currency in
which payment would have been made in the absence of such election; and
if a Currency Conversion Event occurs with respect to the Currency in
which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph
(d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Currency Conversion
Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into Dollars
at the Market Exchange Rate for such Component Currency on the
Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Currency Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the ECU.
35
<Page>
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Currency Conversion Date. If after the
Currency Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the same
proportion. If after the Currency Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a
Component Currency. If after the Currency Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such
two or more currencies, having an aggregate Dollar Equivalent value at
the Market Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately before such
division and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Currency Conversion Date of the relevant currency unit, including, but
not limited to, the ECU, a Currency Conversion Event (other than any
event referred to above in this definition of "Specified Amount")
occurs with respect to any Component Currency of such currency unit and
is continuing on the applicable Valuation Date, the Specified Amount of
such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Currency Conversion Date of such
Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13) of Section
301 by which the written election referred to in paragraph (b) above
may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
In the event that the Company determines in good faith that a
Currency Conversion Event has occurred with respect to a Foreign Currency, the
Company will immediately give written notice thereof to the Trustee and to the
Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the
manner provided for in Section 106 to the affected Holders) specifying the
Currency Conversion Date. In the event the Company so determines that a Currency
Conversion Event has occurred with respect to the ECU or any other currency unit
in which Securities are denominated or payable, the Company will immediately
give written notice thereof to the Trustee and to the Exchange Rate Agent (and
the Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Currency Conversion Date and
the Specified Amount of each Component Currency on the Currency Conversion Date.
In the event the Company determines in good
36
<Page>
faith that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
Section 3.13 APPOINTMENT AND RESIGNATION OF SUCCESSOR
EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated in a
Currency other than Dollars or (ii) may be payable in a Currency other
than Dollars, or so long as it is required under any other provision of
this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of
converting the issued Currency into the applicable payment Currency for
the payment of principal (and premium, if any) and interest, if any,
pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section
shall become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument
delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office
of the Exchange Rate Agent for any cause with respect to the Securities
of one or more series, the Company, by or pursuant to a Board Resolu
tion, shall promptly appoint a successor Exchange Rate Agent or
Exchange Rate Agents with respect to the Securities of that or those
series (it being understood that any such successor Exchange Rate Agent
may be appointed with respect to the Securities of one or more or all
of such series and that, unless otherwise specified pursuant to Section
301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally
issued by the Company on the same date and that are initially
denominated and/or payable in the same Currency).
Section 3.14 DESIGNATION AS SENIOR INDEBTEDNESS.
The Company hereby confirms the designation of the Securities
as "Senior Indebtedness" for the purposes of any securities of the Company that
may be issued pursuant to the Subordinated Indenture.
37
<Page>
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and the obligation of the Company to pay
any Additional Amounts as contemplated by Section 1005) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above,
has irrevoca bly deposited or caused to be deposited
with the Trustee as trust funds in trust for the
purpose an amount, in the Currency in which the
Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee
for cancellation, for principal (and pre mium, if
any) and interest to the date of such deposit (in the
case of Securities
38
<Page>
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 satisfac tion and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606, the
obligations of the Trustee to any Authenticating Agent under Section 611 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 402 and
the last paragraph of Section 1003 shall survive.
Section 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons 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 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.
ARTICLE V
REMEDIES
Section 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 (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article
Twelve; or
39
<Page>
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a default in the
performance, or breach of a covenant or warranty which is specifically
dealt with elsewhere in this Section), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the Federal Bankruptcy Code or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Code or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due;
or
(7) (A) there shall have occurred one or more defaults by the
Company or any Subsidiary in the payment of the principal of or
premium, if any, on Debt aggregating $50 million or more, when the same
becomes due and payable at the stated maturity thereof, and such
default or defaults shall have continued after any applicable grace
period and shall not have been cured or waived or (B) Debt of the
Company or any Subsidiary aggregating $50 million or more shall have
been accelerated or otherwise declared due and payable, or required to
be prepaid or repurchased (other than by regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default described in clause (1), (2), (3), (4),
(7) or (8) of Section 501 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 or Indexed Securities, such
portion of the principal amount as may be specified in the terms of
40
<Page>
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
portion thereof) shall become immediately due and payable. If an Event of
Default described in clause (5) or (6) of Section 501 occurs and is continuing,
then the principal amount of all the Debt Securities shall IPSO FACTO become and
be immediately due and payable without declaration or other act on the part of
the Trustee or any Holder.
At any time after a declaration of acceleration with respect
to Securities of any series (or of all series, as the case may be) 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 (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applica ble, as
provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest on all Outstanding
Securities of that series (or of all series, as the case may
be) and any related coupons,
(B) all unpaid principal of (and premium, if any, on)
any Outstanding Securi ties of that series (or of all series,
as the case may be) which has become due otherwise than by
such declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities because of an Event of
Default specified in Section 501(7) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Debt that is
the subject of such Event of Default has been discharged or the holders thereof
have rescinded their declaration of acceleration in respect of such Debt, and
written notice of such discharge or rescission, as
41
<Page>
the case may be, shall have been given to the Trustee by the Company and
countersigned by the holders of such Debt or a trustee, fiduciary or agent for
such holders, within 30 days after such declaration of acceleration in respect
of the Securities, and no other Event of Default has occurred during such 30-day
period which has not been cured or waived during such period.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, and interest on any overdue principal (and premium, if any) and to
the extent that payment of such interest is lawful on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) 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 (or of all series, as the
case may be) by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
42
<Page>
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
Section 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, upon presentation of the Securities or
coupons, or both, as the case may be, 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 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Securities
and coupons in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
43
<Page>
kind, according to the amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled
thereto including, without limitation, the Company.
Section 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2), (3), (4), (7) or (8) of Section
501, or, in the case of any Event of Default described in clause (5) or
(6) of Section 501, the Holders of not less than 25% in principal
amount of all Outstanding Securities, shall have made written request
to the Trustee to institute proceed ings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
at least a majority or more in principal amount of the Outstanding
Securities of that series in the case of any Event of Default described
in clause (1), (2), (3), (4), (7) or (8) of Section 501, or, in the
case of any Event of Default described in clause (5) or (6) of Section
501, by the Holders of a majority or more in principal amount of all
Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4), (7) or (8) of Section 501, or of Holders
of all Securities in the case of any Event of Default described in clause (5) or
(6) of Section 501, or to obtain or to seek to obtain 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 Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4), (7) or (8) of Section 501, or of
Holders of all Securities in the case of any Event of Default described in
clause (5) or (6) of Section 501.
44
<Page>
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of (and premium, if
any, on) and (subject to Section 307) interest on, such Security or payment of
such coupon on the respective Stated Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 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 of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may 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.
45
<Page>
Section 5.12 CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such 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, relating to or arising under clause
(1), (2), (3), (4), (7) or (8) of Section 501, and, with respect to all
Securities, the Holders of not less than a majority in principal amount of all
Outstanding Securities 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, not relating to or
arising under clause (1), (2), (3), (4), (7) or (8) of Section 501, PROVIDED
that in each case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consent ing.
Section 5.13 WAIVER OF PAST DEFAULTS.
Subject to Section 502, 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 described in clause (1), (2), (3), (4), (7) or (8) of Section 501 (or,
in the case of a default described in clause (5) or (6) of Section 501, the
Holders of not less than a majority in principal amount of all Outstanding
Securities may waive any such past default), and its consequences, except a
default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
46
<Page>
Section 5.14 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.1 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a Default in the payment
of the principal of (or premium, if any, on) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and PROVIDED
FURTHER that in the case of any Default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof.
Section 6.2 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) 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;
47
<Page>
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of 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;
(5) 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 of Securities of any series or any
coupons appertaining thereto 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;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(7) 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; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Section 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility and Qualification on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
48
<Page>
Section 6.4 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.5 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.6 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reason
able compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the 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 obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim 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 (and premium, if any,
on) or interest on particular Securities or any coupons.
Section 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTEREST.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1). Each successor Trustee
shall have a combined capital and surplus of at
49
<Page>
least $50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 6.8 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 609.
(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 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than 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:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) 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
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign 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
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
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
Trustee for any cause, with respect to the Securities of one or
50
<Page>
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). 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 Securi ties of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, 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
hereinafter provided, 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 to the Holders of Securities of such series in the manner
provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.9 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
51
<Page>
retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture to 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. Whenever there is a
successor Trustee with respect to one or more (but less than all)
series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the
provisos to the respective definitions of those terms in Section 101
which contemplate such situation.
(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 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.
Section 6.10 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
52
<Page>
Section 6.11 APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenti cating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenti cated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by 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 organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
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
Authenticat ing 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 give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticat ing 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.
53
<Page>
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 606.
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 authentica tion, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK,
as Trustee
By
-----------------------------------
as Authenticating Agent
By
-----------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 DISCLOSURE OF NAMES AND ADDRESSES OF
HOLDERS.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or 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 TIA Section 312, 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 TIA Section 312(b).
Section 7.2 REPORTS BY TRUSTEE.
Within 60 days after 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 TIA Section 313(c), a brief report dated as of such May
15 if required by TIA Section 313(a).
54
<Page>
Section 7.3 REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Com pany may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file informa tion, documents or reports
pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations pre
scribed from time to time by the Commission.
ARTICLE VIII
MERGER, CONSOLIDATION AND SALE OF ASSETS
Section 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation 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 (A) shall be a corpora tion, partnership
or trust organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia and
(B) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the Company's obligation for the due and punctual payment of
the principal of (and premium, if any, on) and interest on all the
Securities and the
55
<Page>
performance and observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(3) the Company or such Person 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 for relating to such transaction
have been complied with.
This Section shall only apply to a merger or consolidation in
which the Company is not the surviving corporation and to conveyances, leases
and transfers by the Company as transferor or lessor.
Section 8.2 SUCCESSOR PERSON 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 to any Person
in accordance with Section 801, the successor Person 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 Person had been named as the Company herein,
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and liquidated.
Section 8.3 SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any such consolidation of the Company with or merger
of the Company into any other corporation, or upon any conveyance, lease or
transfer of the property of the Company as an entirety or substantially as an
entirety to any other Person, any Principal Property of the Company or of any
Subsidiary, would thereupon become subject to any Lien, then unless such Lien
could be created under the Indenture without equally and ratably securing the
Securities, the Company, prior to or simulta neously with such consolidation,
merger, conveyance, lease or transfer, will, as to such Principal Property,
secure the Securities Outstanding hereunder (together with, if the Company shall
so determine, any other Debt of the Company now existing or hereafter created
which is not subordinate to the Securities) equally and ratably with (or prior
to) the Debt which upon such consolidation, merger, conveyance, lease or
transfer is to become secured as to such Principal Property by such Lien, or
will cause such Securities to be so secured; PROVIDED that, for the purpose of
providing such equal and ratable security, the principal amount of Original
Issue Discount Securities and Indexed Securities shall mean that amount which
would at the time of making such effective provision be due and payable pursuant
to Section 502 and the terms of such Original Issue Discount Securities and
Indexed Securities upon a declaration of acceleration of the Maturity thereof,
and the extent of such equal and ratable security shall
56
<Page>
be adjusted, to the extent permitted by law, as and when said amount changes
over time pursuant to the terms of such Original Issue Discount Securities and
Indexed Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 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:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, 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 denomina tions or to permit or
facilitate the issuance of Securities in uncertificated form; PROVIDED
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 803 or otherwise; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
57
<Page>
(8) 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 609(b); or
(9) to close this Indenture with respect to the authentication
and delivery of additional series of Securities, to cure any ambiguity,
to correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture; PROVIDED
that such action shall not adversely affect the interests of the
Holders of Securi ties of any series and any related coupons in any
material respect;
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect; or
(11) to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
Section 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, 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 which affect such series of Securities or of modifying in any
manner the rights of the Holders of Securities under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstand ing Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts contemplated by Section 1005 (except as contem
plated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable
in bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of any Holder of any Security, or change any
Place of Payment where, or the 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 or repayment at
the option of the Holder, on or after the Redemption Date or Repayment
Date, as the case may be), or
58
<Page>
adversely affect any right to convert or manage any Security as may be
provided pursuant to Section 301 herein, or
(2) reduce the percent in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture, or reduce the
require ments of Section 1504 for quorum or voting.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not 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.
Section 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 shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 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.
Section 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 as then in effect.
Section 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemen tal indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form
59
<Page>
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 9.7 NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE X
COVENANTS
Section 10.1 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities and any related coupons that it will duly
and punctually pay the principal of (and premium, if any, on) and interest on
the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
Section 10.2 MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities 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, where Securities of that series that
are convertible may be surrendered for conversion, if applicable, 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,
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 the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment; PROVIDED, HOWEVER, that, if the
Securities of that series are listed on any 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 any required city
located
60
<Page>
outside the United States 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 outside the United States 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 of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presenta
tions, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, 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, if the Securities of a series are payable in Dollars, payment of
principal of (and premium, if any, on) and interest on any Bearer Security shall
be made at the office of the Company's Paying Agent in The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium
or interest, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
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 any such designation; 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 of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities as contemplated by Section 301 with respect to a
series of Securities, the Company hereby designates as a Place of Payment for
each series of Securities the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee, as Paying
Agent in such city as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
61
<Page>
Section 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 and any related coupons, it will, on or
before each due date of the principal of (and premium, if any, on) or interest
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or interest on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any, on) and interest on Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal of (or premium, if any, on) or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which 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
sums.
Except as provided in the Securities of any series, 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, on) or interest
on any Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due
62
<Page>
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or coupon 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, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, 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.
Section 10.4 STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this Section 1004, such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
Section 10.5 ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of
additional amounts to any Holder who is not a United States person in respect of
any tax, assessment or governmental charge ("Additional Amounts"), the Company
will pay to the Holder of any Security of such series or any coupon appertain
ing thereto such Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal (or premium, if any, on) or interest on, or in respect
of, any Security of a series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of a series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such series established pursuant to Section 301 to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
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 premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) 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 principal 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 premium, if any, on) or interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of the 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 of that series or
related coupons and the Company will pay to the Trustee or such
63
<Page>
Paying Agent the Additional Amounts required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall not so
receive the above-mentioned certificate, then the Trustee or such Paying Agent
shall be entitled to (i) assume that no such withholding or deduction is
required with respect to any payment of principal (and premium, if any) or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal (and premium, if any) and interest with respect to the
Securities of a series or related coupons without withholding or deductions
until otherwise advised. 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 any Officers' Certificate furnished pursuant to this Section.
Section 10.6 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all material lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon any Principal Property of the
Company or any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Section 10.7 CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of the
Company and any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and PROVIDED FURTHER
that the foregoing does not prohibit any mergers or consolidations between
Subsidiaries or between the Company and one or more Subsidiaries so long as any
such merger or consolidation complies with Article Eight.
Section 10.8 WAIVER OF CERTAIN COVENANTS.
The Company may, with respect to any series of Securities,
omit in any particular instance to comply with any term, provision or condition
which affects such series set forth in Section 803 or Sections 1006 to 1007,
inclusive, if before the time for such compliance the Holders of at least a
majority in principal amount of all Outstanding Securities of any series, by Act
of such Holders, waive such compliance in such instance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
64
<Page>
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
Section 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series 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 of the principal of Securities of such
series; PROVIDED, HOWEVER, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 11.4 NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
65
<Page>
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption
Date payable as provided in Section 1106) will become due and
payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease
to accrue on and after said date,
(5) the place or places where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption
Date, are to be surrendered for payment of the Redemption
Price,
(6) that the redemption is for a sinking fund, if
such is the case,
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the Redemption
Price unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished, and
(8) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not
to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities not subject to redemption on such
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges
may be made.
Notice of redemption of Securities 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.
Section 11.5 DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay the Redemption Price of, and accrued interest on,
all the Securities which are to be redeemed on that date.
66
<Page>
Section 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 in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall, if the same were interest-bearing, 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 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 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and PROVIDED FURTHER that 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 307.
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 1002) and, unless otherwise specified as contemplated by Section 301,
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 premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in the Security.
Section 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Twelve) 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 such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder
67
<Page>
of such Security without service charge, a new Security or Securities of the
same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
Section 12.1 APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
Subject to Section 1203, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; PROVIDED, HOWEVER, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 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, 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 in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
68
<Page>
applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE XIII
REPAYMENT AT OPTION OF HOLDERS
Section 13.1 APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
69
<Page>
Section 13.2 REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
Section 13.3 EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repay ment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 13.4 WHEN SECURITIES PRESENTED FOR REPAYMENT
BECOME DUE AND PAYABLE.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with
70
<Page>
accrued interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons, and PROVIDED FURTHER
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment 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 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 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 as provided in the preceding sentence, 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 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
Section 13.5 SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Registered Security or Securities of
the same series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402, or
covenant defeasance of or within a series under Section 1403 in accordance with
the terms of such Securities and in accordance with this Article.
71
<Page>
Section 14.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons (i) to receive, solely from the
trust fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any, on) and
interest on such Securities and any related coupons when such payments are due,
and (ii) to receive shares of common stock or other Securities from the Company
upon the conversion of any convertible securities issued hereunder, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1005, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Fourteen. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section 1402 notwithstanding the prior exercise
of its option under Section 1403 with respect to such Securities and any related
coupons.
Section 14.3 COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 803 and Sections 1006
through 1008, and, if specified pursuant to Section 301, its obligations under
any other covenant, with respect to such Outstanding Securities and any related
coupons on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
related coupons shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(4) or Section 501(8) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
related coupons shall be unaffected thereby.
72
<Page>
Section 14.4 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to any Outstanding Securities of or within a series
and any related coupons:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any related coupons, (A) money in an amount (in
such Currency in which such Securities and any related coupons are then
specified as payable at Stated Maturity), or (B) Government Obligations
applicable to such Securities (determined on the basis of the Currency
in which such Securities are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal
(including any premium) and interest, if any, under such Securities and
any related coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any, on) and interest
on such Outstanding Securities and any related coupons on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and pre
mium, if any) or installment or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities and any related coupons on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities and any related coupons; PROVIDED that the Trustee
shall have been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments with respect
to such Securities and any related coupons. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1102
hereof, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms of
the Securities of such series and Article Eleven hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs (5) and (6) of
Section 501 are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound.
73
<Page>
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of execution
of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any related coupons
will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(6) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
Section 14.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee--collectively for purposes of this Section
1405, the "Trustee") pursuant to Section 1404 in respect of such Outstanding
Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related
coupons 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 Holders of such Securities and any related coupons
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or
by the terms of any Security in respect of which the deposit pursuant to
74
<Page>
Section 1404(1) has been made, the indebtedness represented by such Security and
any related coupons shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (premium, if any, on), and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
related coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
Section 14.6 REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any, on) or interest on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1 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.
75
<Page>
Section 15.2 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 1501, to
be held at such time and at such place in The City of New York or in
London 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 for in
Section 106, 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, 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 1501, 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 City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in paragraph (a) of this Section.
Section 15.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled 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 Person 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.
Section 15.4 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 Securities of such series; PROVIDED, HOWEVER, that, if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
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 1502(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. Notice of the reconvening of
any adjourned meeting shall state expressly
76
<Page>
the percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, 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
Holders of not less than a majority in principal amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by the
proviso to Section 902, 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 Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of that series.
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.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authori zation,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 15.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of 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 its 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 104 and
the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the
proxy witnessed or
77
<Page>
guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding 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 104 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 1502(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
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in Section
101); 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 1502 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.
Section 15.6 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 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the 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.
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 Indenture.
78
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CENDANT CORPORATION
By: /s/ James E. Buckman
------------------------------------
Name: James E. Buckman
Title: Senior Executive Vice
President & General Counsel
[Seal]
Attest:
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
Trustee
By: /s/ Warren A. Goshine
------------------------------------
Name: Warren A. Goshine
Title: Secretary/Trust Officer
[Seal]
Attest:
79
<Page>
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise [Name of Issuer] or its agent that such financial
institution 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) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
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
above-captioned 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 certificate excepts and does not relate to [U.S.$] of such
interest in the above- captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
80
<Page>
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making
Certification]
----------------------------------
(AUTHORIZED SIGNATORY)
Name:
Title:
81
<Page>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise [Name of Issuer] or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (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 or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above- captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
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, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
82
<Page>
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear System]
[CEDEL S.A.]
By
--------------------------------------------------
83