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HONEYWELL FINANCE B.V.
HONEYWELL CANADA LIMITED
ISSUERS
HONEYWELL INC.,
GUARANTOR
AND
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
TRUSTEE
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Indenture
Dated as of , 1996
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INDENTURE, dated as of , 1996, among HONEYWELL FINANCE B.V., a
corporation duly organized and existing under the laws of The Netherlands
(herein called the "Dutch Issuer"), having its principal office at 1101 EA,
Amsterdam, Z'O'E', The Netherlands, HONEYWELL CANADA LIMITED, a corporation duly
organized and existing under the laws of the province of Ontario, Canada (herein
called the "Canadian Issuer" and, together with the Dutch Issuer, the
"Issuers"), having its principal office at The Honeywell Center, 155 Gordon
Baker Road, North York, Ontario, Canada, M2H 3N7, HONEYWELL INC., a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Guarantor"), having its principal office at Honeywell Plaza,
Minneapolis, Minnesota 55408, and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association duly organized and existing under
the laws of the United States, not individually but solely as Trustee (herein
called the "Trustee").
RECITALS
Each of the Issuers has duly authorized its 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"), to be issued in one or more series as in this Indenture provided.
The Guarantor desires to make the Guarantees provided for herein.
All things necessary to make this Indenture a valid agreement of the Issuers
and the Guarantor, 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 ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. 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;
(3) any gender used in this Indenture shall be deemed and construed to
include correlative words of the masculine, feminine or neuter gender;
(4) 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
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(5) 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 Six, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" with respect to the Securities of any series of an
issuer means such additional amounts as may be necessary in order that the net
amounts paid to the holders of such Securities or the applicable Trustee, after
deduction or withholding of any taxes, levies, imposts, assessments or other
governmental charges required by the Issuer Jurisdiction, shall equal the
respective amounts of principal of and any premium and interest to which the
Holders of such Securities or the applicable Trustee are then currently
entitled; provided, however, that such Additional Amounts shall not include (i)
the amount of any such tax, levy, impost, assessment or other governmental
charge imposed by the United States or any political subdivision or taxing
authority thereof or therein; (ii) the amount of any such tax, levy, impost,
assessment or other governmental charge which would not be payable or due but
for (A) the existence of any present or former connection between such Holder
and the Issuer Jurisdiction, including, without limitation, such Holder being or
having been a citizen, national or resident thereof, or being or having been
engaged in business or present therein or having or having had a permanent
establishment therein, but not including the mere holding or ownership of a debt
security, or the collection of principal of and interest on, or the enforcement
of, a debt security, or (B) the presentation of such Security for payment more
than 30 days after the date on which such payment became due or was provided
for, whichever is later; (iii) the amount of any estate, inheritance, gift,
sale, transfer, personal property or similar tax, assessment or other
governmental charge or any other tax, levy, impost, assessment or other
governmental charge which is payable otherwise than by withholding from payments
of (or in respect of) principal of and any premium or interest on, such
Securities; (iv) the amount of any such tax, levy, impost, assessment or other
governmental charge that is imposed or withheld by reason of the failure to
comply by the Holder or the beneficial owner of any such Security with a request
of the applicable Issuer or the Guarantor addressed to the Holder (x) to provide
information concerning the nationality, residence or identity of the Holder or
such beneficial owner or (y) to make any declaration or other similar claim to
satisfy any information or reporting requirement, which in the case of (x) or
(y), is required or imposed by a statute, treaty, regulation or administrative
practice of the Issuer Jurisdiction as a precondition to exemption from all or
part of such tax, levy, impost, assessment or other governmental charge; or (v)
any combination of items (i), (ii), (iii) and (iv).
"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.
"Attributable Debt" in respect of any Sale and Leaseback Transaction means,
at the date of determination, the present value (discounted at the rate of
interest implicit in the
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terms of the lease) of the obligation of the lessee for net rental payments
during the remaining term of the lease (including any period for which such
lease has been extended or may, at the option of the lessor, be extended). "Net
rental payments" under any lease for any period means the sum of the rental and
other payments required to be paid in such period by the lessee thereunder,
excluding any amounts required to be paid by such lessee (whether or not
designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Bankruptcy Law" means any United States Federal or State, Canadian federal
or provincial or Netherlands, as the case may be, bankruptcy, insolvency,
reorganization or other similar law.
"Board of Directors", when used with reference to any of the Issuers or the
Guarantor, means the board of directors (or in the case of the Dutch Issuer, the
Board of Managing Directors) of such Issuer or the Guarantor, as the case may
be, or any duly authorized committee appointed by such board of such Issuer or
the Guarantor.
"Board Resolution", when used with reference to any of the Issuers or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Issuer or the Guarantor, as the case may be, to have
been duly adopted by the Board of Directors thereof and to be in full force and
effect on the date of such certification. Where any provision of this Indenture
refers to action to be taken pursuant to a Board Resolution (including
establishment of any series of the Securities and the forms and terms thereof)
of an Issuer or the Guarantor, such action may be taken by any committee,
officer or employee of such Issuer or the Guarantor, as the case may be,
authorized to take such action by a Board Resolution.
"Business Day", when used with respect to any Place of Payment for any
Security, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions generally in that Place of Payment are
authorized or obligated by law or executive order to close, unless otherwise
specified in such Security.
"Canadian Issuer" means a Person named as the "Canadian Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Canadian Issuer" shall mean such successor Person.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Guarantor but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (b) all goodwill, trade names, patents, unamortized debt discount
and expense and any other like intangibles, all as set forth on the most recent
consolidated balance sheet of the Guarantor and computed in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee in The City of New
York, New York at which at any particular time its corporate trust business
shall be principally administered, which office is, at the date of this
Indenture, located at 4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York
11245, Attention: Institutional Trust Group.
"Corporation" includes corporations, associations, companies, joint stock
companies and business trusts.
"Debt" has the meaning specified in Section 1007.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act, specified for that purpose as
contemplated by Section 301 or any successor clearing agency registered under
the Exchange Act as contemplated by Section 305, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of such
series.
"Dutch Issuer" means a Person named as the "Dutch Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Dutch
Issuer" shall mean such successor Person.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means Debt which by its terms matures at or is extendible or
renewable at the option of the obligor to a date more than 12 months after the
date of the creation of such Debt.
"Global Security" means a Security evidencing all or part of a series of
Securities, issued to the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"Guaranteed Obligations" shall have the meaning set forth in Section 1301
"Guarantor" means the Person named as the "Guarantor" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Guarantor" shall
mean such successor Person.
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"Guarantor Request" or "Guarantor Order" means a written request or order
signed in the name of the Guarantor by its Chairman of the Board, its President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary and delivered to the Trustee.
"Guarantee" means the guarantee of the Guarantor pursuant to Article
Thirteen hereof, as such guarantee may be amended, modified or supplemented from
time to time.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of 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 due to the appointment of one or more
separate Trustees for any one or more separate series of Securities pursuant to
Section 610(e), "Indenture" shall mean, with respect to such series of
Securities for which any 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.
"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.
"Issuer" means any of the Persons named an "Issuer" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor Person.
"Issuer Jurisdiction" means the jurisdiction (or any political subdivision
or taxing authority thereof or therein) in which an Issuer is incorporated or is
resident for tax purposes.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the applicable Issuer by, in the case of the Canadian Issuer, its
President or a Vice President, and by its Treasurer, its Secretary or an
Assistant Secretary, or, in the case of the Dutch Issuer, two of its Managing
Directors, and delivered to the Trustee.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Lien" or "Liens" has the meaning specified in Section 1007.
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"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of such principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by, in the case of the
Canadian Issuer or the Guarantor, the President or a Vice President of such
Issuer or the Guarantor, as the case may be, and by the Treasurer, the Secretary
or an Assistant Secretary of such Issuer or the Guarantor, as the case may be,
or, in the case of the Dutch Issuer, two Managing Directors of such Issuer, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the applicable Issuer or the Guarantor, as the case
may be.
"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 canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the applicable Issuer) in trust or set aside and segregated in
trust by the applicable Issuer (if such Issuer shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) 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 applicable Issuer;
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
whether a quorum is present at a meeting of Holders of Securities, (i) the
principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units
that shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 as of the
date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined as of the date of original issuance of such
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Security, of the amount determined as provided in (i) above) of such
Security as determined by the applicable Issuer pursuant to Section 301, and
(iii) Securities owned by any of the Issuers, the Guarantor or any other
obligor upon the Securities or any Affiliate of the applicable Issuer or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not an Issuer, the Guarantor or any
other obligor upon the Securities or any Affiliate of an Issuer, the
Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the applicable Issuer to pay
the principal of (and premium, if any) and/or interest on any Securities on
behalf of such Issuer.
"Periodic Offering" means an offering of Securities of a series from time to
time the specific terms of which Securities, including without limitation the
rate or rates of interest (or formula for determining the rate or rates of
interest), if any, thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
applicable Issuer or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series
of an Issuer, means the place or places where the principal of (and premium, if
any) and/or interest on the Securities of that series of the Issuer are payable,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon such Issuer or the
Guarantor in respect of the Securities of that series and this Indenture may be
served.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing plant located within the United
States of America (other than its territories or possessions) and owned by the
Guarantor or any Subsidiary, the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 1% of Consolidated Net Tangible Assets of the Guarantor,
except any such plant (i) which is financed by obligations issued by a State or
local governmental unit pursuant to Section 142(a)(5), 142(a)(6), 142(a)(8) or
144(a) of the Internal Revenue Code of 1986, or any successor provision thereof,
or (ii) which is not of material importance to the business conducted by the
Guarantor and its
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Subsidiaries, taken as a whole (as determined by any two of the following: the
Chairman or a Vice Chairman of the Board of the Guarantor, its President, its
Chief Financial Officer, its Vice President of Finance, its Treasurer or its
Controller).
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption 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.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", means when used with respect to the Trustee, any
officer of the Trustee assigned to the Corporate Trust Office including any Vice
President, Assistant Vice President, Secretary, Assistant Secretary, Managing
Director or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in Section 1008.
"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 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 as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which securities (excluding securities
entitled to vote for directors only by reason of the occurrence of a
contingency) entitled to elect at least a majority of the corporation's
directors shall at the time be owned, directly or indirectly, by the Guarantor,
or one or more Subsidiaries, or by the Guarantor and one or more Subsidiaries.
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"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"U.S. Government Obligations" means direct obligations of the United States
of America, backed by its full faith and credit.
"Vice President", when used with respect to an Issuer or the Guarantor,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president", of such Issuer or the
Guarantor.
"Voting Stock", when used with respect to a corporation, 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
such corporation (irrespective of whether at the time stock or securities of any
other class or classes shall have or might have voting power by reason of the
occurrence of any contingency).
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by an Issuer or the Guarantor to the Trustee
to take any action under any provision of this Indenture, the applicable Issuer
or Guarantor shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, 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, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture 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 such covenant or condition has
been complied with; and
(4) a statement whether, in the opinion of each such individual, such
condition or covenant has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of an Issuer or the Guarantor 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 such officer's
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 such
Issuer or the Guarantor stating that the information with respect to such
factual matters is in the possession of such Issuer or the Guarantor, 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 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing,
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the applicable Issuer or Issuers and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and such Issuer or Issuers and the Guarantor, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved 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 signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer's
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.
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(c) The ownership of Securities shall be proved by the Security Register.
Each of the Issuers and the Guarantor may fix any day as the record date for the
purpose of determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the applicable
Issuer or the Guarantor prior to the first solicitation of a Holder of
Securities of such series made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be, or such other date as required
by statute governing the applicable Issuer. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) 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, the applicable
Issuer or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE, ISSUERS AND GUARANTOR.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by an Issuer or the Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with a Responsible Officer of the Trustee at its Corporate
Trust Office, Attention: Institutional Trust Group, or
(2) an Issuer or the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, in the case of an Issuer, international
air mail postage prepaid, addressed to such at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by such Issuer and,
in the case of the Guarantor, first-class postage prepaid and addressed to
it at the address of its principal office specified in the first paragraph
of this instrument (Attention: Treasurer).
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed,
12
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made by or with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. COMPLIANCE WITH TRUST INDENTURE ACT.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer, the Guarantor
or the Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities or the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or the Guarantees, 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, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
13
SECTION 113. LEGAL HOLIDAYS.
Except as may be otherwise specified with respect to any particular
Securities, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security 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 at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 114. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language in the country
of publication.
SECTION 115. APPOINTMENT OF AGENT FOR SERVICE.
By the execution and delivery of this Indenture, each of the Issuers hereby
appoints the Guarantor as its agent upon which process may be served in any
legal action or proceeding which may be instituted in Federal or State court in
the Borough of Manhattan, The City of New York, arising out of or relating to
the Securities, the Guarantees or this Indenture, but for that purpose only.
Service of process upon such agent at the office of the Guarantor at
, New York, New York , and written notice of said service to
such Issuer by the Person servicing the same addressed as provided by Section
105, shall be deemed in every respect effective service of process upon such
Issuer in any such legal action or proceeding, and each of the Issuers hereby
irrevocably submits to the nonexclusive jurisdiction of any such court in which
any such legal action or proceeding is so instituted. Such appointment shall be
irrevocable so long as the Holders of Securities shall have any rights pursuant
to the terms thereof or of this Indenture until the appointment of a successor
agent by the Guarantor or such Issuer with the consent of the Trustee and such
successor's acceptance of such appointment. Each of the Issuers further agrees
to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment of such agent or successor, and agrees to waive all objections
to the venue and jurisdiction of any such court in which such legal action or
proceeding is so instituted.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be substantially in such form or forms
(not inconsistent with this Indenture) as shall be established by or pursuant to
one or more Board Resolutions of the applicable Issuer and set forth in an
Officers' Certificate or established by one or more indentures supplemental
hereto, in each case with such appropriate insertions,
14
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,
as evidenced by their execution of the Securities. If a form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by, in the case of
the Canadian Issuer, the Secretary or an Assistant Secretary of the Canadian
Issuer or, in the case of the Dutch Issuer, two Managing Directors of the Dutch
Issuer, and delivered to the Trustee at or prior to the delivery of the Issuer
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Guarantees by the Guarantor to be endorsed on the Securities of each
series of each Issuer shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to a Board Resolution of
the Guarantor, or in one or more indentures supplemental hereto, pursuant to
Section 301, in each case with such appropriate insertions, omissions,
substitutions and other corrections 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 delivering such Guarantees, all as evidenced by such
delivery. If the form of Guarantees by the Guarantor to be endorsed on the
Securities of each series of each Issuer is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Guarantor and
delivered to the Trustee at or prior to the delivery of the Guarantor Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture.
The definitive Securities and Guarantees endorsed thereon may be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series designated therein and issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By ___________________________________
Authorized Officer
15
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution of the applicable Issuer and
the Guarantor and, subject to Section 303, set forth or determined in the manner
provided in an Officers' Certificate or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any series
of such Issuer (except as provided in the last paragraph of this Section 301),
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a 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;
(4) the date or dates on which the principal or installments of
principal of the Securities of the series is or are payable and any rights
to extend such date or dates;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the formula pursuant to which such rate or rates shall
be determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable, any Securities of the
series may be surrendered for registration of transfer or exchange and
notices and demands to or upon the applicable Issuer and the Guarantor with
respect to the Securities of the series, the Guarantees and this Indenture
may be served;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the applicable Issuer or the
Guarantor (including the period referred to in Section 1108);
(8) other than with respect to any redemption of Securities pursuant to
Section 1108, the obligation, if any, of the applicable Issuer to redeem or
purchase Securities
16
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the denominations in which
Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Securities of the series
shall be payable, if other than the currency of the United States of
America, the manner of determining the U.S. dollar equivalent of the
principal amount thereof for purposes of the definition of "Outstanding" in
Section 101, and, if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the applicable
Issuer or a Holder thereof, in one or more currencies or currency units
other than that or those in which the Securities are stated to be payable,
the currency, currencies or currency units in which payment of the principal
of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(11) any other event or events of default applicable with respect to
Securities of the series in addition to or in lieu of those provided in
Section 501(1)-(7);
(12) if less than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(13) whether the Securities of the series shall be issued in whole or in
part in the form of one or more Global Securities and, if so, (a) the
Depositary with respect to such Global Security or Securities and (b) the
circumstances under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global
Security may be registered to, a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(14) if principal of or any premium or interest on the Securities of a
series is denominated or payable in a currency, currencies or currency units
other than the currency of the United States of America, whether and under
what terms and conditions the applicable Issuer and the Guarantor may be
discharged from obligations pursuant to Sections 403 and 1009 with respect
to Securities of such series;
(15) whether and under what circumstances the applicable Issuer will not
pay Additional Amounts on the Securities of the series as provided in
Section 1011 and will not have the option to redeem such Securities rather
than pay such Additional Amounts as provided in Section 1108;
(16) any other covenants with respect to the Securities of such series;
and
(17) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
901(5)).
17
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the applicable Issuer or the Guarantor, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of such Issuer or the Guarantor and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the series.
With respect to Securities of a series offered in a Periodic Offering, such
Board Resolution and Officers' Certificate or supplemental indenture may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be
specified in an Issuer Order and Guarantor Order or that such terms shall be
determined by the applicable Issuer or the Guarantor or its agents in accordance
with other procedures specified in an Issuer Order or Guarantor Order as
contemplated by the third paragraph of Section 303.
Section 302. DENOMINATIONS.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of U.S. $1,000 or any amount in excess thereof which is an
integral multiple of U.S. $1,000.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the applicable Issuer, in the
case of the Canadian Issuer, by its President, Treasurer or one of its Vice
Presidents, attested by its Secretary or its Assistant Secretary, and, in the
case of the Dutch Issuer, by any two of its Managing Directors. The signature of
any of these officers on the Securities may be manual or facsimile.
The Guarantees shall be executed on behalf of the Guarantor by its Chairman
of the Board, its President or one of its Vice Presidents, attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Guarantees may be manual or facsimile.
Securities or Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the applicable Issuer or
the Guarantor, as the case may be, shall bind such Issuer or the Guarantor, as
the case may be, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or Guarantees or did not hold such offices at the date of such
Securities or Guarantees.
At any time and from time to time after the execution and delivery of this
Indenture, an Issuer may deliver Securities of any series executed by such
Issuer and having endorsed
18
thereon Guarantees of the Guarantor to the Trustee for authentication, together
with an Issuer Order for the authentication and delivery of such Securities and
a Guarantor Order from the Guarantor approving the delivery of the Guarantees
endorsed thereon, or, in the case of Securities offered in a Periodic Offering,
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of electronic instructions from such
Issuer or the Guarantor or its respective duly authorized agents, promptly
confirmed in writing by such Issuer or the Guarantor) acceptable to the Trustee
as may be specified from time to time by an Issuer Order for establishing the
specific terms of particular Securities being so offered, and the Trustee in
accordance with such Issuer Order and Guarantor Order shall authenticate and
deliver such Securities having such Guarantees endorsed thereon. If the form or
forms or terms of the Securities of the series and the applicable Guarantees
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities and
Guarantees and accepting the additional responsibilities under this Indenture in
relation to such Securities and Guarantees, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) that the form or forms of such Securities and the applicable
Guarantees endorsed thereon have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities and the applicable Guarantees
endorsed thereon have been established in conformity with the provisions of
this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer thereof in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of such Issuer, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles;
(d) that such Guarantees, when authenticated and delivered by the
Trustee and issued by the Guarantor in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Guarantor, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles;
(e) that authentication and delivery of such Securities and Guarantees
and the execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(f) that such Issuer has the corporate power to issue such Securities,
and has duly taken all necessary corporate action with respect to such
issuance;
(g) that the Guarantor has the corporate power to issue such
Guarantees, and has duly taken all necessary corporate action with respect
to such issuance;
19
(h) that the issuance of such Securities will not contravene the
certificate of incorporation or bylaws of such Issuer 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
such Issuer is bound; and
(i) that the issuance of such Guarantees will not contravene the
certificate of incorporation or bylaws of the Guarantor 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 Guarantor is bound;
provided, however, that, with respect to Securities of a series and the
applicable Guarantees offered in a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel in connection only with the first
authentication of each form of Securities of such series and Guarantees and that
the opinions described in Clauses (b), (c) and (d) above may state,
respectively, that
(b) if the terms of such Securities and the applicable Guarantees
endorsed thereon are to be established pursuant to an Issuer Order or a
Guarantor Order or pursuant to such procedures as may be specified from time
to time by an Issuer Order or a Guarantor Order, all as contemplated by a
Board Resolution or action taken pursuant thereto, such terms will have been
duly authorized by the Issuer thereof and the Guarantor and established in
conformity with the provisions of this Indenture;
(c) that such Securities, when executed by such Issuer, completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and issued and delivered by such Issuer and paid for, all in
accordance with any agreement of such Issuer relating to the offering,
issuance and sale of such Securities, will be duly issued under this
Indenture and will constitute valid and legally binding obligations of such
Issuer, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting generally the enforcement of creditors' rights and to general
principles of equity; and
(d) that such Guarantees, when executed by the Guarantor, completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and issued and delivered by the Guarantor and paid for, all in
accordance with any agreement of the applicable Issuer and the Guarantor
relating to the offering, issuance and sale of such Guarantees, will be duly
issued under this Indenture and will constitute valid and legally binding
obligations of the Guarantor, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting generally the enforcement of creditors' rights and
to general principles of equity.
In rendering such Opinion of Counsel, counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of New York, the
Delaware General Corporation Law and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
Opinion of Counsel shall state that such counsel believes that such counsel and
the Trustee are entitled so to rely.
20
With respect to Securities of a series and the applicable Guarantees
endorsed thereon offered in a Periodic Offering, the Trustee may conclusively
rely, as to the authorization of any of such Securities by the Issuer thereof or
of such Guarantees by the Guarantor, the form or forms and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel, Issuer Order, Guarantor Order and other documents delivered pursuant
to Sections 201 and 301 and this Section, as applicable, in connection with the
first authentication of a form of Securities of such series and the applicable
Guarantees endorsed thereon and it shall not be necessary for such Issuer or the
Guarantor to deliver such Opinion of Counsel and other documents (except as may
be required by the specified other procedures, if any, referred to above) at or
prior to the time of authentication of each Security of such series or
applicable Guarantee endorsed thereon unless and until the Trustee receives
notice that such Opinion of Counsel or other documents have been superseded or
revoked, and may assume compliance with any conditions specified in such Opinion
of Counsel (other than any conditions to be performed by the Trustee). If such
form or forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities or Guarantees if the issue of such
Securities or Guarantees pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities or Guarantees and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Each Security and the applicable Guarantee endorsed thereon shall be dated
the date of its authentication.
No Security or Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Guarantee a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security or Guarantee shall be conclusive evidence, and the
only evidence, that such Security or Guarantee has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security or Guarantee shall have been
authenticated and delivered hereunder but never issued and sold by the
applicable Issuer and Guaranteed by the Guarantor, and such Issuer shall deliver
such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security and
Guarantee has never been issued and sold by such Issuer, for all purposes of
this Indenture such Security and Guarantee shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
applicable Issuer may execute, and upon Issuer Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities and having endorsed thereon Guarantees
of the Guarantor substantially of the tenor of definitive Guarantees, in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
21
If temporary Securities of any series are issued, the applicable Issuer 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 like tenor of such series upon surrender of the temporary
Securities of such series at the office or agency of the applicable Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series the
applicable Issuer shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series and of like tenor and of any authorized denominations which have
endorsed thereon the Guarantees of the Guarantor. 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 and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
Each of the Issuers shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the applicable Issuer shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at
the office or agency of the applicable Issuer in any Place of Payment for such
series, the applicable Issuer shall execute and the Trustee shall authenticate
and deliver (in the name of the designated transferee or transferees) one or
more new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor which have endorsed thereon the
Guarantees of the Guarantor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at the office or agency of the applicable Issuer in any Place of
Payment for such series. Whenever any Securities are so surrendered for
exchange, the applicable Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the applicable Issuer and the
Guarantor, evidencing the same debt and entitled to the same benefits under this
Indenture as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the applicable Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to such Issuer and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the applicable Issuer may require payment of a sum sufficient
to cover any tax or
22
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
None of the Issuers shall be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as contemplated
by Section 301, any Global Security shall be exchangeable pursuant to this
Section 305 for Securities registered in the name of Persons other than the
Depositary for such Security or its nominee only if (i) such Depositary notifies
the applicable Issuer that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a
clearing agency registered under the Exchange Act, (ii) the applicable Issuer
executes and delivers to the Trustee an Issuer Order that such Global Security
shall be so exchangeable or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such series.
Notwithstanding any other provision of this Indenture, a Global Security may
not be transferred except as a whole by the Depositary for such Global Security
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the applicable
Issuer 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 having endorsed thereon the applicable Guarantee and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the applicable Issuer, the Guarantor and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security 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 applicable Issuer, the Guarantor or the Trustee that such
Security has been acquired by a bona fide purchaser, such Issuer shall execute
and upon its written request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount having endorsed thereon the
applicable Guarantee and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the applicable Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the applicable
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the applicable Issuer and the Guarantor, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the applicable Issuer, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The applicable Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. Such Issuer shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time such Issuer shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall 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 payment. The
Trustee shall promptly notify such Issuer of such Special Record Date and,
in the name and at the expense of such Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at such Holder's address as it appears in the
Security Register, not less than 10 days prior to
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such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The applicable Issuer may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by such Issuer to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, 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 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
applicable Issuer, the Guarantor, the Trustee and any agent of such Issuer, the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither such Issuer, the Guarantor,
the Trustee nor any agent of such Issuer, the Guarantor or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominee) shall have any rights under this
Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the applicable Issuer, the
Guarantor, the Trustee, and any agent of such Issuer, the Guarantor or the
Trustee as the owner of such Global Security or any Security represented thereby
for all purposes whatsoever. Notwithstanding the foregoing, with respect to any
Global Security, nothing herein shall prevent such Issuer, the Guarantor, the
Trustee, or any agent of such Issuer, the Guarantor or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of beneficial
interest, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominees) as Holder of any Security.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. Any Issuer or the Guarantor may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which such Issuer or the Guarantor may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any
25
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which such Issuer has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be destroyed unless
otherwise directed by an Issuer Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Securities denominated in any currency (the "Required
Currency") other than United States of America dollars, except as otherwise
provided therein, the obligation of the applicable Issuer to make any payment of
principal, premium or interest thereon shall not be discharged or satisfied by
any tender by such Issuer, or recovery by the Trustee, in any currency other
than the Required Currency, except to the extent that such tender or recovery
shall result in the Trustee timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is in a currency
other than the Required Currency, the Trustee will take such actions as is
required under that certain Currency Exchange Agreement between the Guarantor
and the Trustee, dated as of even date herewith. The costs and risks of any such
exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by such Issuer, such Issuer shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon an Issuer Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive Additional
Amounts as provided in Section 1011), with respect to such Issuer and the
Guarantor, and the Trustee, at the expense of such Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of such Issuer theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306
and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by
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such Issuer or the Guarantor and thereafter repaid to such Issuer or the
Guarantor or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) 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 such
Issuer,
and such Issuer or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount, in the currency in which such
Securities are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the respective Stated Maturity or Redemption Date, as the
case may be;
(2) such Issuer or the Guarantor has paid or caused to be paid all
other sums payable hereunder by such Issuer, and
(3) such Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the applicable Issuer and the Guarantor to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating Agent under
Section 614, and, if money shall have been deposited with the Trustee pursuant
to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003, shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to 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 and this
Indenture, to the payment, either directly or through any Paying Agent
(including the applicable Issuer or the Guarantor 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.
SECTION 403. DEFEASANCE AND DISCHARGE OF INDENTURE.
If principal of and any premium and interest on Securities of any series are
denominated and payable in United States of America dollars, the applicable
Issuer and the Guarantor shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding
27
Securities of such series on the 91st day after the date of the deposit referred
to in subparagraph (d) hereof, and the provisions of this Indenture, as they
relate to such Outstanding Securities, shall no longer be in effect (and the
Trustee, at the expense of such Issuer or the Guarantor, shall upon an Issuer
Request of such Issuer, execute proper instruments acknowledging the same),
except as to:
(a) the rights of Holders of Securities to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal of
(and premium, if any) or interest on the Outstanding Securities on the
Stated Maturity of such principal or installment of principal or interest
and (ii) the benefit of any mandatory sinking fund payments applicable to
the Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities;
(b) such Issuer's and the Guarantor's obligations, respectively, with
respect to such Securities under Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) the applicable Issuer or the Guarantor has deposited or caused to
be irrevocably deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) as trust funds in the trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders
of the Securities of such series, (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in clause (A) or
(B) of this subparagraph (d) money in an amount or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (A) the
principal of (and premium, if any) and each installment of principal of (and
premium, if any) and interest on the Outstanding Securities on the Stated
Maturity of such principal or installment of principal and interest and (B)
any mandatory sinking fund payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities;
(e) such deposit shall not cause the Trustee with respect to the
Securities of such series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the applicable Issuer or the Guarantor is a party or by
which it is bound;
(g) such provision would not cause any Outstanding Securities then
listed on the New York Stock Exchange or other securities exchange to be
de-listed as a result thereof;
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(h) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(i) such Issuer or the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that there has
been a change in applicable United States Federal law such that, or such
Issuer or the Guarantor has received from, or there has been published by,
the Internal Revenue Service a ruling to the effect that, Holders of the
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposits, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(j) such Issuer or the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by this Section
have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series of an Issuer, and unless otherwise provided with respect to Securities of
any series of an Issuer pursuant to Section 301(11), 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 upon any Security of that
series when it 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 a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of such Issuer or the Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of one or more Securities other
than that series), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail (which
in the case of the Dutch Issuer or the Canadian Issuer shall be
international air mail), to such Issuer and the Guarantor by the Trustee or
to such Issuer, the Guarantor and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series 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
29
(5) an event of default, as defined in any indenture or instrument
under which any Issuer, the Guarantor or any Restricted Subsidiary shall
have outstanding at least $10,000,000 aggregate principal amount of
indebtedness for money borrowed, shall happen and be continuing and such
indebtedness shall, as a result thereof, have been accelerated so that the
same shall be or become due and payable prior to the date on which the same
would otherwise have become due and payable, and such acceleration shall not
be rescinded or annulled within 10 days after notice thereof shall have been
given, by registered or certified mail (which in the case of the Dutch
Issuer or Canadian Issuer shall be international air mail), to such Issuer
and the Guarantor by the Trustee, or to such Issuer, the Guarantor and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Securities of that series at the time Outstanding; provided, however, that
if such event of default under such indenture or instrument shall be
remedied or cured by such Issuer, the Guarantor or such Restricted
Subsidiary, as the case may be, or waived by the holders of such
indebtedness, then, unless the Securities of any series shall have been
accelerated as provided herein, the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or any
Holders of the Securities of any series; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the applicable Issuer or the
Guarantor in an involuntary case or proceeding under any applicable
Bankruptcy Law or (B) a decree or order adjudging such Issuer or the
Guarantor a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of such Issuer or the Guarantor under any applicable Bankruptcy Law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Issuer or the Guarantor 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
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the applicable Issuer or the Guarantor of a
voluntary case or proceeding under any applicable Bankruptcy Law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
such Issuer or the Guarantor in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any applicable
Bankruptcy Law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
such Issuer or the Guarantor 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 the taking of corporate action by such Issuer or the
Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Outstanding Securities of any series
of any Issuer occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series of such Issuer are Original Issue Discount
Securities, such lesser portion of the principal amount of such Securities as
may be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to such Issuer and the
Guarantor (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.
At any time after such a declaration of acceleration with respect to
Outstanding Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written notice
to applicable Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if
(1) such Issuer or the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon 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 any other amounts due the Trustee
under Section 607; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
Each of the Issuers covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made by such Issuer in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
31
such Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Security, the whole amount then due and payable on such Security
for principal (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest at the rate or rates
prescribed therefor in such Security, 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 such Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against such Issuer or any other obligor upon such Security and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of such Issuer or any other obligor upon such Security, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to an Issuer, the Guarantor or any other obligor
upon the Securities or the property of such Issuer, the Guarantor or 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 such Issuer or the Guarantor for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) or such portion of the principal amount of any series of
Original Issue Discount 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 any other amounts due the Trustee under
Section 607) 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
32
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and for any other amounts due
the Trustee under Section 607, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series of an Issuer shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
the Guarantees 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 of
such Issuer;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series of such Issuer shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee 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 a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
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 of
such Holders, 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 of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such 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 applicable Issuer, the Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or 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.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of any series of an Issuer may, on behalf of the Holders
of all the Securities of such series, waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest
on any Security of such series of such Issuer, 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.
Each of the Issuers and the Guarantor may, but shall not be obligated to,
fix a record date for the purpose of determining the Persons entitled to waive
any past default hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders remain
Holders after such record date; provided, that unless such majority in principal
amount shall have waived such default prior to the date which is 90 days after
such record date, any such waiver of such default previously given shall
automatically and without further action by any Holder be canceled and of no
further effect.
Upon any such waiver, 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 impair any right consequent thereon.
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SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by such
Holder's acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to any suit
instituted by any of the Issuers or the Guarantor, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series of the applicable Issuer, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Issuers and the Guarantor 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 each of the
Issuers and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The provisions of TIA Section 315 shall apply to the Trustee.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect to
the Securities of any series of an Issuer, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security 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 interests of the Holders of Securities of such series;
and provided, further, that in the case of any default of the
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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. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of an Issuer or the Guarantor mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer Order,
a Guarantor Request or Guarantor Order or as otherwise expressly provided
herein and any resolution of the Board of Directors of such Issuer or the
Guarantor may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers' Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or follow any request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory
to it against any costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such fact 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 Issuer
or the Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
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(h) 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, rights or powers conferred upon it by this Indenture; and
(i) 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
indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of any of the
Issuers or the Guarantor, 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. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by any of the Issuers of Securities of the proceeds
thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuers or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Issuers or
the Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
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 an Issuer or the Guarantor in writing, as the case may be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
Each of the Issuers and the Guarantor 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 reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and its agents 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.
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The obligations of each Issuer and the Guarantor under this Section 607 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture or
the resignation and removal of the Trustee. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities, and the
Securities are hereby subordinated to each senior claim.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The provisions of TIA Section 310(b) shall apply to the Trustee.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be eligible to
act under TIA Section 310(a)(1), shall have a combined capital and surplus of at
least $50,000,000 and shall be subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. None of
the Issuers or the Guarantor, nor any Person directly or indirectly controlling,
controlled by or under common control with an Issuer or the Guarantor, shall act
as Trustee hereunder.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series of an Issuer by giving written notice thereof to such
Issuer. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the applicable Issuer and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section 310(b) after
written request therefor by the applicable Issuer or the Guarantor or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
39
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the applicable
Issuer or the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the applicable Issuer by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of 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 more series of an Issuer, such
Issuer, 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 of a particular Issuer) and shall comply with the
applicable requirements of Section 611. 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 of a
particular Issuer shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series of such Issuer
delivered to such Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series of such
Issuer and to that extent supersede the successor Trustee appointed by such
Issuer. If no successor Trustee with respect to the Securities of any series
of an Issuer shall have been so appointed by such Issuer or the Holders and
accepted appointment in the manner required by Section 611, any Holder who
has been a bona fide Holder of a Security of such series of such Issuer 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 of such
Issuer.
(f) The applicable Issuer shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series of
such Issuer and each appointment of a successor Trustee with respect to the
Securities of any series of such Issuer by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of Securities of
such series of such Issuer as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
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SECTION 611. 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 each of the Issuers, to the Guarantor
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 any of the Issuers,
the Guarantor 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 of one or more
Issuers, the applicable Issuer or Issuers, the Guarantor, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be 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 the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series of such Issuer to which the
appointment of such successor Trustee relates; but, on request of the
applicable Issuer or Issuers and the Guarantor 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.
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(c) Upon request of any such successor Trustee, the applicable Issuer
or Issuers and the Guarantor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) and (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.
(e) The retiring Trustee shall have no liability for any acts or
omissions of any successor Trustee hereunder.
(f) Upon the appointment of any successor Trustee, hereunder, all fees,
charges and expenses of the retiring Trustee shall become immediately due
and payable.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; in case
any of the Securities shall not have been authenticated by the Trustee then in
office, any successor by merger, conversion or consolidation to such Trustee may
authenticate such Securities either in the name of such 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.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS OR
GUARANTOR.
The Trustee shall comply with TIA Section 311(a). A Trustee which has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding the Trustee, with
the concurrence of the applicable Issuer or Issuers, 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 Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by 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 applicable Issuer or Issuers and shall at all times be a
corporation organized and doing business under the laws of the United States of
America,
42
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, State or
District of Columbia authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided 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 applicable Issuer or Issuers. 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 applicable Issuer or
Issuers. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the applicable
Issuer or Issuers and shall mail written notice of such appointment in the
manner provided in Section 105, to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The applicable Issuer or Issuers agree to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated herein and issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By ___________________________________
As Authenticating Agent
By ___________________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE,
ISSUERS AND THE GUARANTOR
SECTION 701. ISSUERS AND GUARANTOR TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS.
If the Trustee is not acting as Security Registrar for the Securities of any
series, each of the Issuers and the Guarantor will furnish or cause to be
furnished to the Trustee.
(a) at intervals of no more than six months commencing after the first
issue of such series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not more
than 15 days prior to the time such information is furnished, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by an Issuer or the Guarantor of any such request,
a list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided
by TIA Section 312(b).
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuers, the Guarantor and the Trustee that none of the
Issuers, the Guarantor nor the Trustee nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
Within 60 days after May 1 of each year commencing with the later of May 1,
1996 or the first May 1 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail to all Holders of Securities as
provided in TIA Section 313(c) a brief report dated as of such May 1 if required
by TIA Section 313(a). A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the applicable
Issuer. The applicable Issuer will notify the Trustee when any Securities are
listed on any stock exchange.
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SECTION 704. REPORTS BY ISSUERS AND GUARANTOR.
Each of the Issuers and the Guarantor shall:
(1) file with the Trustee, within 15 days after it 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 such Issuer or the Guarantor 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 such Issuer or the Guarantor is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
such Issuer or the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by such Issuer or the Guarantor pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) furnish to the Trustee, within 120 days after the end of each
fiscal year of such Issuer or the Guarantor ending after the date hereof, a
brief certificate of such Issuer's or the Guarantor's respective principal
executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of such Issuer's or the Guarantor's
compliance with all conditions and covenants under this Indenture. For
purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. ISSUER OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Neither of the Issuers nor the Guarantor shall consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person unless:
(1) the Person formed by such consolidation or into which such Issuer
or the Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of such Issuer or the
Guarantor substantially as an
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entirety shall be a corporation, partnership or trust, shall be organized
and validly existing, in the case of the Guarantor, under the laws of the
United States of America, any State thereof or the District of Columbia and,
in the case of the Issuers, under the laws of any jurisdiction, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, in the case
of any of the Issuers, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of such Issuer to
be performed or observed, and, in the case of the Guarantor, the due and
punctual performance of the Guarantee (including all Additional Amounts, if
any, payable pursuant to Section 1011 and subsection (3) below) and the
performance or observance of every covenant of this Indenture on the part of
the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(3) the Person formed by such consolidation with an Issuer or into
which such Issuer is merged or to whom the Issuer has conveyed, transferred
or leased its properties and assets substantially as an entirety (if such
Person's Issuer Jurisdiction, as defined in Section 1011, is not within the
United States) agrees to indemnify the Holder of each Security against (a)
any Additional Amounts imposed on any such Holder as a consequence of such
consolidation, merger, conveyance, transfer or lease; and (b) any costs or
expenses of the act of such consolidation, merger, conveyance, transfer or
lease; and
(4) the applicable Issuer or the Guarantor, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of an Issuer or the Guarantor with, or merger by an
Issuer or the Guarantor into, any other Person or any conveyance, transfer or
lease of the properties and assets of an Issuer or the Guarantor substantially
as an entirety in accordance with Section 801, the successor Person formed by
such consolidation or into which such Issuer or the Guarantor 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, such Issuer or the
Guarantor, as the case may be, under this Indenture with the same effect as if
such successor Person had been named as an Issuer or the Guarantor herein, as
the case may be, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities.
SECTION 803. ASSUMPTION BY GUARANTOR OR SUBSIDIARY OF ISSUER'S OBLIGATIONS.
The Guarantor or any Subsidiary of the Guarantor may, where permitted by law
assume the obligations of an Issuer (or any Person which shall have previously
assumed the obligations of an Issuer) for the due and punctual payment of the
principal of (and any premium),
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interest on and any other payments with respect to the Securities and the
performance of every covenant of this Indenture and the Securities on the part
of such Issuer to be performed or observed, provided that:
(1) the Guarantor or such Subsidiary, as the case may be, shall
expressly assume such obligations by an indenture supplemental hereto, in
form reasonably satisfactory to the Trustee, executed and delivered to the
Trustee and if such Subsidiary assumes such obligations, the Guarantor
shall, by such supplemental indenture, confirm that its Guarantees shall
apply to such Subsidiary's obligations under the Securities and this
Indenture, as modified by such supplemental indenture;
(2) the Guarantor or such Subsidiary, as the case may be, shall agree
in such supplemental indenture, to the extent provided in the Securities, to
pay any and all Additional Amounts;
(3) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(4) the Guarantor or such Subsidiary, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such assumption and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and
(5) such assumption shall not result in adverse tax consequences to any
Holder, and the Person assuming such obligations shall not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
Upon any such assumption, the Guarantor or such Subsidiary shall succeed to,
and be substituted for, and may exercise every right and power of, the
applicable Issuer under this Indenture with the same effect as if the Guarantor
or such Subsidiary had been named as an "Issuer" herein, and the Person named as
an "Issuer" in the first paragraph of this instrument or any successor Person
which shall theretofore have become such in the manner prescribed in this
Article shall be released from its liability as obligor upon the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, an Issuer and the Guarantor, 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 such Issuer or the
Guarantor and the assumption by any such successor of the covenants of such
Issuer or the Guarantor herein and in the Securities or Guarantees; or
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(2) to add to the covenants of such Issuer or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of one or more specified series) or to surrender any right or power
herein conferred upon such Issuer or the Guarantor; 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 such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(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
611(b); or
(9) 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 such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the applicable
Issuer, the Guarantor and the Trustee, the applicable Issuer, when authorized by
a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
of such Issuer under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any such 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 an Issuer or the
Guarantor to pay Additional Amounts pursuant to Section 1011 (except as
contemplated 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 change any Place of Payment where, or
the coin or currency in which, any such Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption or repayment, on or after the Redemption Date or
any repayment date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series of such Issuer, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences provided
for in this Indenture,
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided however, that this Clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1010, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8), or
(4) modify or affect in any manner adverse to the interests of the
Holders of any Securities the terms and conditions of the obligations of the
Guarantor in respect of the due and punctual payment of the principal
thereof, premium, if any, and interest, if any, thereon or any sinking fund
payments provided in respect thereof.
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 of an Issuer, or which
modifies the rights of the Holders of Securities of such series of such Issuer
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.
The applicable Issuer may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed for such purpose, the Holders on
such record date or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be canceled and of no further effect.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and an Officer's Certificate stating
that all conditions precedent to the execution of such supplemental indenture as
set forth herein have been complied with. 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 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent provided therein.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the applicable Issuer and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and such Issuer and the Guarantor, to any
such supplemental indenture may be prepared and executed by such Issuer, the
Guarantees of the Guarantor may be endorsed thereon and such securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the applicable Issuer, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of Section 902,
the applicable Issuer or the Guarantor shall give notice thereof to the Holders
of each Outstanding Security so affected, pursuant to Section 106, setting forth
in general terms the substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST; PERFORMANCE UNDER
GUARANTEE.
Each of the Issuers covenants and agrees for the benefit of each series of
Securities of such Issuer that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture. In the absence
of contrary provisions with respect to the Securities of any series, interest on
the Securities of any series may, at the option of the applicable Issuer, be
paid by check mailed to the address of the Person entitled thereto as it appears
on the Security Register.
The Guarantor covenants and agrees for the benefit of each series of
Securities that it will duly and punctually perform its obligations under the
Guarantees in accordance with the terms of such Guarantees and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
Each of the Issuers will maintain in each Place of Payment for any series of
Securities of such Issuer an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon such Issuer in respect of the Securities of that series and
this Indenture may be served. The Guarantor will maintain in the Borough of
Manhattan, The City of New York, an office or agency where notices and demands
to or upon the Guarantor in respect of Securities of any series and this
Indenture may be served. Each of the Issuers and the Guarantor 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 an Issuer or the Guarantor shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and such
Issuer and the Guarantor hereby appoint the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Each of the Issuers may also from time to time designate one or more other
offices or agencies where the Securities of one or more series of such Issuer
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve such Issuer of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The applicable Issuer 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.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If any of the Issuers or the Guarantor shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the currency in which such series of
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Securities is payable 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 failure so to act.
Whenever any of the Issuers shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum 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 applicable Issuer will promptly notify the Trustee of
its failure so to act.
The applicable Issuer will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that 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 applicable Issuer (or
any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that 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.
Any of the Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the applicable Issuer or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by such
Issuer or such Paying Agent, and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
any of the Issuers or the Guarantor, in trust for the payment of the principal
of (and premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the applicable Issuer on Issuer
Request, or (if then held by such Issuer or the Guarantor) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the applicable Issuer or the Guarantor
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of such Issuer or the Guarantor
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 applicable Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
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and of general circulation in the Borough of Manhattan, The City of New York,
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
applicable Issuer on Issuer Request.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Issuer and the Guarantor will do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that each of the Issuers and the Guarantor shall not be required to preserve any
such right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the applicable Issuer or the Guarantor, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Issuers and the Guarantor each will cause all properties used or useful
in the conduct of its business or the business material to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the applicable Issuer or the Guarantor, as the case may be, may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent an Issuer or the Guarantor from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the applicable Issuer or the Guarantor, as the case may be,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuers and the Guarantor each will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the applicable
Issuer or the Guarantor or upon the income, profits or property of such Issuer
or the Guarantor, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property; PROVIDED,
HOWEVER, that such Issuer or the Guarantor, as the case may be, 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.
SECTION 1007. RESTRICTION ON SECURED DEBT.
(a) So long as any of the Securities are Outstanding, the Guarantor will not
itself, and will not permit any Restricted Subsidiary to, incur, issue, assume
or guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed being hereinafter in this Article
called "Debt"), secured by pledge of, or mortgage or other lien on, any
Principal Property, now owned or hereafter owned by the Guarantor or any
Restricted Subsidiary, or any shares of stock or Debt of any Restricted
Subsidiary (pledges, mortgages
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and other liens being hereinafter in this Article called "Lien" or "Liens"),
without effectively providing that the Securities of each series then
Outstanding and the Guarantee thereof (together with, if the Guarantor shall so
determine, any other Debt of the Guarantor or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Securities of
each series then Outstanding and the Guarantee thereof) shall be secured equally
and ratably with (or prior to) such secured Debt, so long as such secured Debt
shall be so secured; provided, however, that this Section shall not apply to,
and there shall be excluded from secured Debt in any computation under this
Section, Debt secured by:
(1) Liens on any Principal Property acquired, constructed or improved
by the Guarantor or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with such
acquisition, construction or improvement, or within 120 days before or after
the completion thereof, to secure or provide for the payment of all or any
part of the cost of such acquisition, construction or improvement (including
related expenditures capitalized for Federal income tax purposes in
connection therewith) incurred after the date of this Indenture;
(2) Liens of or upon any property, shares of capital stock or Debt
existing at the time of acquisition thereof, whether by merger,
consolidation, purchase, lease or otherwise (including Liens of or upon
property, shares of capital stock or indebtedness of a corporation existing
at the time such corporation becomes a Restricted Subsidiary);
(3) Liens in favor of the Guarantor or any Restricted Subsidiary;
(4) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof or
political entity affiliated therewith, or in favor of any other country, or
any political subdivision thereof, to secure partial, progress, advance or
other payments, or other obligations, pursuant to any contract or statute or
to secure any Debt incurred for the purpose of financing all or any part of
the cost of acquiring, constructing or improving the property subject to
such Liens (including Liens incurred in connection with pollution control,
industrial revenue or similar financings);
(5) Liens imposed by law, such as mechanics', workmen's, repairmen's,
materialmen's, carriers', warehousemen's, vendors' or other similar liens
arising in the ordinary course of business, or governmental (federal, state
or municipal) liens arising out of contracts for the sale of products or
services by the Guarantor or any Restricted Subsidiary, or deposits or
pledges to obtain the release of any of the foregoing;
(6) pledges or deposits under workmen's compensation laws or similar
legislation and Liens of judgments thereunder which are not currently
dischargeable, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which the
Guarantor or any Restricted Subsidiary is a party, or deposits to secure
public or statutory obligations of the Guarantor or any Restricted
Subsidiary, or deposits in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions, social
security or similar matters, or deposits of cash or
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obligations of the United States of America to secure surety, appeal or
customs bonds to which the Guarantor or any Restricted Subsidiary is a
party, or deposits in litigation or other proceedings such as, but not
limited to, interpleader proceedings;
(7) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against the
Guarantor or any Restricted Subsidiary with respect to which the Guarantor
or such Restricted Subsidiary is in good faith prosecuting an appeal or
proceedings for review; or Liens incurred by the Guarantor or any Restricted
Subsidiary for the purpose of obtaining a stay or discharge in the course of
any litigation or other proceeding to which the Guarantor or such Restricted
Subsidiary is a party;
(8) Liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings;
(9) Liens consisting of easements, rights-of-way, zoning restrictions,
restrictions on the use of real property, and defects and irregularities in
the title thereto, landlords' liens and other similar liens and encumbrances
none of which interfere materially with the use of the property covered
thereby in the ordinary course of the business of the Guarantor or such
Restricted Subsidiary and which do not, in the opinion of the Guarantor,
materially detract from the value of such properties; or
(10) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to in
the foregoing clauses (1) to (9), inclusive; provided, that (i) such
extension, renewal or replacement Lien shall be limited to all or a part of
the same property, shares of stock or Debt that secured the Lien extended,
renewed or replaced (plus improvements on such property) and (ii) the Debt
secured by such Lien at such time is not increased.
(b) Notwithstanding the restrictions contained in subdivision (a) of this
Section, the Guarantor and its Restricted Subsidiaries, or any of them, may
incur, issue, assume or guarantee Debt secured by Liens without equally and
ratably securing the Securities of each series then Outstanding and the
Guarantee thereof, provided, that at the time of such incurrence, issuance,
assumption or guarantee, after giving effect thereto and to the retirement of
any Debt which is concurrently being retired, the aggregate amount of all
outstanding Debt secured by Liens which could not have been incurred, issued,
assumed or guaranteed by the Guarantor or a Restricted Subsidiary without
equally and ratably securing the Securities of each series then Outstanding and
the Guarantee thereof except for the provisions of this subdivision (b) does not
at such time exceed 10% of Consolidated Net Tangible Assets of the Guarantor.
SECTION 1008. RESTRICTION ON SALE AND LEASEBACK TRANSACTIONS.
(a) So long as any of the Securities are Outstanding, the Guarantor will not
itself, and it will not permit any Restricted Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Guarantor or any Restricted Subsidiary) or to which any such
lender or investor is a party, providing for the leasing by the Guarantor or a
Restricted Subsidiary for a period, including renewals, in excess of three years
of any Principal Property which has been or is to be sold or transferred
55
by the Guarantor or any Restricted Subsidiary to such lender or investor or to
any person to whom funds have been or are to be advanced by such lender or
investor on the security of such Principal Property (herein referred to as a
"Sale and Leaseback Transaction") unless either:
(1) The Guarantor or such Restricted Subsidiary would, at the time of
entering into such arrangement, be entitled, without equally and ratably
securing the Securities of each series then Outstanding or the Guarantee
thereof, to incur Debt secured by a Lien on such property, pursuant to
paragraphs (1) to (10), inclusive, of Section 1007; or
(2) the Guarantor within 120 days after the sale or transfer shall have
been made by the Guarantor or by a Restricted Subsidiary, applies an amount
equal to the greater of (i) the net proceeds of the sale of the Principal
Property sold and leased back pursuant to such arrangement or (ii) the fair
market value of the Principal Property so sold and leased back at the time
of entering into such arrangement (as determined by any two of the
following: the Chairman or a Vice Chairman of the Board of the Guarantor,
its President, its Chief Financial Officer, its Vice President of Finance,
its Treasurer or its Controller) to the retirement of Funded Debt of the
Guarantor; provided, that the amount to be applied to the retirement of
Funded Debt of the Guarantor shall be reduced by (A) the principal amount of
any Securities delivered within 120 days after such sale to the Trustee for
retirement and cancellation, and (B) the principal amount of Funded Debt,
other than Securities, voluntarily retired by the Guarantor within 120 days
after such sale. Notwithstanding the foregoing, no retirement referred to in
this clause (a)(2) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or mandatory prepayment provision.
(b) Notwithstanding the restrictions contained in subdivision (a) of this
Section, the Guarantor and its Restricted Subsidiaries, or any of them, may
enter into a Sale and Leaseback Transaction, provided, that at the time of such
transaction, after giving effect thereto, the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions existing at such
time which could not have been entered into except for the provisions of this
subdivision (b) does not at such time exceed 10% of Consolidated Net Tangible
Assets of the Guarantor.
(c) A Sale and Leaseback Transaction shall not be deemed to result in the
creation of a Lien.
SECTION 1009. DEFEASANCE OF CERTAIN OBLIGATIONS.
The following provisions shall apply to the Securities of each series of an
Issuer unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto pursuant to Section 301. The
applicable Issuer or the Guarantor, as the case may be, may omit to comply with
any term, provision or condition applicable to it set forth in Sections 1005,
1006, 1007 and 1008 and any such omission with respect to Sections 1005, 1006,
1007 and 1008 shall not be an Event of Default, in each case with respect to the
Securities of that series of such Issuer, provided that the following conditions
have been satisfied:
(1) with reference to this Section 1009, the applicable Issuer or the
Guarantor has deposited or caused to be irrevocably deposited with the
Trustee (or another trustee
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satisfying the requirements of Section 609) as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of such series, (i) money in an amount, or
(ii) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to in clause
(A) or (B) of this subparagraph (1) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (A) the principal of
(and premium, if any) and each instalment of principal (and premium, if any)
and interest on the Outstanding Securities on the Stated Maturity of such
principal or installments of principal and interest and (B) any mandatory
sinking fund payments or analogous payments applicable to the Securities of
such series of such Issuer on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities;
(2) such deposit shall not cause the Trustee with respect to the
Securities of such series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which such Issuer or the Guarantor is a party or by which it
is bound;
(4) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities of that
series shall have occurred and be continuing on the date of such deposit;
(5) such Issuer or the Guarantor has delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance of certain obligations
and will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred; and
(6) such Issuer or the Guarantor 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 defeasance
contemplated in this Section have been complied with.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
Any Issuer and the Guarantor may, with respect to the Securities of any
series of such Issuer, omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or
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condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of such Issuer and the Guarantor and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
An Issuer may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any such term, provision or
condition. If a record date is fixed for such purpose, the Holders on such
record date or their duly designated proxies, and only such Persons, shall be
entitled to waive any such term, provision or condition hereunder, whether or
not such Holders remain Holders after such record date; provided that unless the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series of such Issuer shall have waived such term, provision
or condition prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
SECTION 1011. ADDITIONAL AMOUNTS.
(a) Unless otherwise provided in the terms of the Securities of a series of
any Issuer established as contemplated by Section 301, such Issuer will pay to
the Holder of any Security of such series all amounts of principal of and any
premium, and interest on Securities without deduction or withholding for any
withholding taxes, levies, imposts and other governmental charges whatsoever
imposed by or for the account of the jurisdiction (or any political subdivision
or taxing authority thereof or therein) in which the Dutch Issuer or the
Canadian Issuer (or the successor thereto) is incorporated or is a resident for
tax purposes (the "Issuer Jurisdiction"), or if deduction or withholding or any
such taxes, levies, imposts, assessments or other governmental charges shall at
any time be required by the Issuer Jurisdiction, the applicable Issuer will pay
as additional interest such Additional Amounts to which such Holder is then
currently entitled. Subject to the foregoing provisions, whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
and any premium and interest on any Security of any series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for
in this Section to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
Unless otherwise provided in the terms of the Securities of a series
established as contemplated by Section 301 at least 10 days prior to the first
Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first
day on which a payment of principal and any premium is made), and at least 10
days prior to each date of payment of principal and any premium or interest if
there has been any change with respect to the matters as set forth in the
below-mentioned Officers' Certificate, the applicable Issuer will furnish the
Trustee and such Issuer'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 any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series without withholding for or on account of any tax,
levy, impost, assessment or other governmental charge described in the
Securities of that series. If
58
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 and such Issuer will pay to the Trustee or such
Paying Agent or Paying Agents the Additional Amounts required by this Section.
Each of the Issuers and the Guarantor covenant to indemnify each of the Trustee
and any Paying Agent for, and to hold each of them harmless against, any loss,
liability or expense 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, except to the extent that any such loss, liability or
expense is due to its own negligence or bad faith.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of an Issuer to redeem any Securities shall be evidenced by an
Officers' Certificate. An Issuer shall, at least 45 days prior to the Redemption
Date fixed by such Issuer (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of
(1) such Redemption Date,
(2) if the Securities of such series of such Issuer have different
terms and less than all of the Securities of such series of such Issuer are
to be redeemed, the terms of the Securities to be redeemed, and
(3) if less than all the Securities of such series with identical terms
are to be redeemed, the principal amount of such Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the applicable Issuer shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of like tenor 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 like tenor of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of like tenor of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series.
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The Trustee shall promptly notify the applicable Issuer in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 106 by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed
not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of like tenor 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 will become due
and payable upon each such Security 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 are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of any of
the Issuers shall be given by the applicable Issuer or, at such Issuer's
request, by the Trustee in the name and at the expense of such Issuer.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the applicable Issuer shall deposit with
the Trustee or with a Paying Agent (or, if such Issuer or the Guarantor is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in immediately available funds sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the applicable
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice,
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such Security shall be paid by the applicable Issuer at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed in part shall be surrendered at a Place
of Payment for such series (with, if the applicable Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to such Issuer and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the applicable Issuer
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; provided,
however, that if a Global Security is so surrendered, such new Security so
issued shall be a new Global Security in a denomination equal to the unredeemed
portion of the principal of the Global Security so surrendered.
SECTION 1108. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.
Each series of Securities of any Issuer may be redeemed at the option of
such Issuer in whole but not in part at any time (except in the case of
Securities that have a variable rate of interest, which may be redeemed on any
Interest Payment Date) at a Redemption Price equal to the principal amount
thereof plus accrued interest to the date fixed for redemption (except in the
case of Outstanding Original Issue Discount Securities which may be redeemed at
the Redemption Price specified by the terms of such series of Securities) if,
(i) the applicable Issuer is or would be required to pay Additional Amounts as a
result of any change in or amendment to the laws or any regulations or rulings
promulgated thereunder of the Issuer Jurisdiction or any change in the official
application or interpretation of such laws, regulations or rulings, or any
change in the official application or interpretation of, or any execution of or
amendment to, any treaty or treaties affecting taxation to which such Issuer
Jurisdiction is a party, which change, execution or amendment becomes effective
on or after the date of issuance of such series pursuant to Section 301(7) (or
in the case of an assumption by the Guarantor or its Subsidiary of obligations
of the applicable Issuer under the Securities pursuant to Section 803, the date
of such assumption), or (ii) as a result of any change in the official
application or interpretation of, or any execution of or amendment to, any
treaty or treaties affecting taxation to which the Issuer Jurisdiction is a
party, which change, execution or amendment becomes effective on or after a date
on which the Guarantor or any of its subsidiaries (an "Intercompany Debtor")
borrows money from the applicable Issuer, the Intercompany Debtor is or would be
required to deduct or withhold tax on any payment to the applicable Issuer to
enable such Issuer to make any payment of principal, premium, if any, or
interest, and the payment of such Additional Amounts, in the case of clause (i)
or such
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deductions or withholding, in the case of clause (ii) cannot be avoided by the
use of any reasonable measures available to the Issuer, the Guarantor or the
Intercompany Debtor. Prior to the giving of notice of redemption of such
Securities pursuant to this Indenture, the Issuer will deliver to the Trustee an
Officers' Certificate, stating that such Issuer is entitled to effect such
redemption and setting forth in reasonable detail a statement of circumstances
showing that the conditions precedent to the right of such Issuer to redeem such
Securities pursuant to this Section have been satisfied.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
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 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 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
An Issuer (1) may deliver Outstanding Securities of like tenor of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of like tenor of a series which have been redeemed either at the
election of the applicable Issuer 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 sinking fund payment with respect to the Securities of like tenor of such
series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for Securities
of like tenor of a series, the applicable Issuer will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of like tenor of that series pursuant to Section 1202 and, at the
time of delivery of such Officers' Certificate, will also deliver to the Trustee
any Securities to be so delivered.
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Not less than 45 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 such Issuer in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
GUARANTEE OF SECURITIES
SECTION 1301. GUARANTEE.
(a) The Guarantor hereby unconditionally guarantees to each Holder of a
Security of each series of an Issuer authenticated and delivered by the Trustee
or an Authenticating Agent, the due and punctual payment of the principal of
(including any amount in respect of original issue discount), and any premium
and interest (together with any Additional Amounts payable pursuant to the terms
of such Security), on such Security and the due and punctual payment of the
sinking fund payment, if any, and analogous obligations, if any, provided for
pursuant to the terms of such Security, when and as the same shall become due
and payable, whether at maturity or upon redemption, repayment or upon
declaration or otherwise according to the terms of such Security and of this
Indenture (the "Guaranteed Obligations"). In case of default by an Issuer in the
payment of any such principal (including any amount in respect of original issue
discount), premium, interest (together with any Additional Amounts payable
pursuant to the terms of such Security), sinking fund payment, or analogous
obligation, the Guarantor agrees duly and punctually to pay the same. The
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional irrespective of any extension of the time for payment of any such
Security, any invalidity, irregularity or unenforceability of any such Security
or this Indenture, any failure to enforce the same or any waiver, modification
or indulgence granted to the applicable Issuer with respect thereto by the
Holder of such Security or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the applicable
Issuer, any right to require a proceeding first against such Issuer, protect or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged as to any such Security except by payment in full of the principal of
(including any amount payable in respect of original issue discount) and any
premium and interest (together with any Additional Amounts payable pursuant to
the terms of such Security), thereon.
(b) The Guarantor further agrees that its Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Guaranteed
Obligations.
(c) The Guarantor agrees that it shall not be entitled to, and hereby
irrevocably waives, any right to which it may be entitled, by operation of law
or otherwise, upon making any
63
payment hereunder, to be subrogated in relation to the Holders or the Trustee in
respect of any Guaranteed Obligations, or otherwise to be reimbursed,
indemnified or exonerated by or for the account of the Issuer in respect
thereof. The Guarantor further agrees that, as between the Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Guaranteed Obligations may be accelerated as provided in Section 502 for the
purposes of the Guarantor's Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations, and (y) in the event of any declaration of acceleration
of such Guaranteed Obligations as provided in Section 502, such Guaranteed
Obligations shall forthwith become due and payable by the Guarantor for the
purpose of this Article 1301.
(d) The Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Article 1301.
(e) The Guarantee set forth in this Article 1301 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 1302. EXECUTION AND DELIVERY OF GUARANTEES.
To evidence its guarantee specified in Section 1301 to the Holders of
Securities of any series of an Issuer, the Guarantor hereby agrees to execute
the Guarantee to be endorsed on each Security of such series authenticated and
delivered by the Trustee or an Authenticating Agent as provided in Section 303,
and the delivery of such Security by the Trustee or any Authenticating Agent,
after the authentication thereof hereunder, shall constitute due delivery of
such Guarantee on behalf of the Guarantor.
SECTION 1303. GUARANTEE UNCONDITIONAL, ETC.
Upon failure of payment when due of any Guaranteed Obligation for whatever
reason, the Guarantor will be obligated to pay the same immediately. The
Guarantor hereby agrees that its obligations hereunder shall be continuing,
absolute and unconditional, irrespective of: the recovery of any judgment
against the applicable Issuer or the Guarantor; any extension, renewal,
settlement, compromise, waiver or release in respect of any obligation of the
applicable Issuer under this Indenture or any Security, by operation of law or
otherwise; any modification or amendment of or supplement to this Indenture or
any Security; any change in the corporate existence, structure or ownership of
the applicable Issuer, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting such Issuer or its assets or any resulting release
or discharge of any obligation of such Issuer contained in this Indenture or any
Security; the existence of any claim, set-off or other rights which the
Guarantor may have at any time against the applicable Issuer, the Trustee, any
Holder or any other Person, whether in connection herewith or any unrelated
transactions; provided, that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim; any claim of invalidity
or unenforceability relating to or against the applicable Issuer for any reason
under this Indenture or any Security, or any provision of applicable law or
regulation purporting to prohibit the payment by the applicable Issuer of the
principal of or interest on any Security or any other Guaranteed Obligation; or
any other act or omission to act or delay of any kind by the applicable Issuer,
the Trustee, any Holder or any other
64
Person or any other circumstance whatsoever which might, but for the provisions
of this paragraph, constitute a legal or equitable discharge of the Guarantor's
obligations hereunder. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the applicable Issuer, any right to require a proceeding first
against such Issuer, protest, notice and all demand whatsoever and covenants
that this Guarantee will not be discharged except by the complete performance of
the obligations contained in the Securities, this Indenture and in this Article
Thirteen. The Guarantor's obligations hereunder shall remain in full force and
effect until the principal of and interest on the Securities and all other
Guaranteed Obligations shall have been paid in full. If at any time any payment
of the principal of or interest on any Security or any other payment in respect
of any Guaranteed Obligation is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the applicable
Issuer or otherwise, the Guarantor's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time, and this Article Thirteen, to the extent theretofore discharged,
shall be reinstated in full force and effect. The Guarantor irrevocably waives
any and all rights to which it may be entitled, by operation of law or
otherwise, upon making any payment hereunder to be subrogated to the rights of
the payee against the applicable Issuer with respect to such payment or
otherwise to be reimbursed, indemnified or exonerated by the applicable Issuer
in respect thereof.
------------------------
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and, in the case of the Trustee, the corporate seal of the Trustee to
be hereunto affixed and attested, all as of the day and year first above
written.
HONEYWELL INC.
By ___________________________________
Paul N. Saleh
Vice President and Treasurer
Attest:
__________________________________
Sigurd Ueland, Jr.
Vice President and Secretary
65
HONEYWELL FINANCE B.V.
By ___________________________________
[Name]
[Title]
By ___________________________________
[Name]
[Title]
Attest:
__________________________________
[Name]
[Title]
HONEYWELL CANADA LIMITED
By ___________________________________
[Name]
[Title]
By ___________________________________
[Name]
[Title]
Attest:
__________________________________
[Name]
[Title]
66
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
not individually, but solely as
Trustee
By ___________________________________
[Ronald A. DeSorbo]
Vice President
Attest:
__________________________________
[Mary Lewicki]
Assistant Secretary
[SEAL]
67
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the ____ day of ___________, 1996 before me personally came Paul N. Saleh
to me known, who, being by me duly sworn, did depose and say that he is Vice
President and Treasurer of Honeywell Inc., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
[SEAL]
______________________________________
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the ____ day of ___________, 1996 before me personally came [NAME] to me
known, who, being by me duly sworn, did depose and say that he is [TITLE] of
Honeywell Finance B.V., one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; and that
he signed his name thereto by authority of the Board of Managing Directors of
said corporation.
[SEAL]
______________________________________
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the ____ day of ___________, 1996 before me personally came [NAME] to me
known, who, being by me duly sworn, did depose and say that he is [TITLE] of
Honeywell Finance B.V., one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; and that
he signed his name thereto by authority of the Board of Managing Directors of
said corporation.
[SEAL]
______________________________________
Notary Public
68
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the ____ day of ___________, 1996 before me personally came [NAME] to me
known, who, being by me duly sworn, did depose and say that he is [TITLE] of
Honeywell Canada Limited, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
[SEAL]
______________________________________
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the ____ day of ___________, 1996 before me personally came [NAME] to me
known, who, being by me duly sworn, did depose and say that he is [TITLE] of
Honeywell Canada Limited, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
[SEAL]
______________________________________
Notary Public
STATE OF NEW YORK )
) SS.
COUNTY OF KINGS )
On the ____ day of ___________, 1996 before me personally came [Ronald A.
DeSorbo] to me known, who, being by me duly sworn, did depose and say that he is
Vice President of The Chase Manhattan Bank (National Association), one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[SEAL]
______________________________________
Notary Public