EXHIBIT 4.4
NCR CORPORATION
AND
THE BANK OF NEW YORK, as Trustee
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INDENTURE
Dated as of June 1, 2002
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CROSS REFERENCE SHEET *
Provisions of Trust Indenture Act of 1939, as amended, and Indenture to
be dated as of June 1, 2002, between NCR Corporation and The Bank of New York,
as Trustee:
Section of the Act Section of Indenture
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310(a)(1) and (2) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10(a), (b) and (d)
310(c) Inapplicable
311(a) 6.13
311(b) 6.13
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)
312(c) 4.2(c)
313(a) 4.4(a) and (b)
313(b)(1) Inapplicable
313(b)(2) 4.4
313(c) 4.4
313(d) 4.4
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9 and 5.10
316(a)(2) Not required
316(a)(last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4(a) and (b)
318(a) 11.7
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* This Cross Reference Sheet is not part of the Indenture.
ARTICLE ONE DEFINITIONS.......................................................................... 1
SECTION 1.1 Certain Terms Defined............................................................ 1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act................................ 7
ARTICLE TWO SECURITIES........................................................................... 7
SECTION 2.1 Forms Generally.................................................................. 7
SECTION 2.2 Form of Trustee's Certificate of Authentication.................................. 8
SECTION 2.3 Amount Unlimited; Issuable in Series............................................. 8
SECTION 2.4 Authentication and Delivery of Securities........................................ 11
SECTION 2.5 Execution of Securities.......................................................... 13
SECTION 2.6 Certificate of Authentication.................................................... 13
SECTION 2.7 Denomination and Date of Securities; Payments of Interest........................ 13
SECTION 2.8 Registration, Transfer and Exchange.............................................. 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities........................ 17
SECTION 2.10 Cancellation of Securities....................................................... 18
SECTION 2.11 Temporary Securities............................................................. 18
SECTION 2.12 Currency and Manner of Payments in Respect of Securities......................... 18
SECTION 2.13 Compliance with Certain Laws and Regulations..................................... 22
SECTION 2.14 CUSIP Numbers.................................................................... 22
SECTION 2.15 Securities in Global Form........................................................ 22
ARTICLE THREE COVENANTS OF THE ISSUER.............................................................. 23
SECTION 3.1 Payment of Principal and Interest................................................ 23
SECTION 3.2 Offices for Payment, etc......................................................... 23
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee............................... 24
SECTION 3.4 Paying Agents.................................................................... 24
SECTION 3.5 Written Statement to Trustee..................................................... 25
SECTION 3.6 Limitation on Liens.............................................................. 25
SECTION 3.7 Limitation on Sale and Lease-Back................................................ 28
SECTION 3.8 Additional Amounts............................................................... 28
SECTION 3.9 Calculation of Original Issue Discount........................................... 29
ARTICLE FOUR SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE..................... 29
SECTION 4.1 Company to Furnish Trustee Information as to Names and Addresses of
Securityholders.................................................................. 29
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SECTION 4.2 Preservation and Disclosure of Securityholders' Lists............................ 30
SECTION 4.3 Reports by the Company........................................................... 31
SECTION 4.4 Reports by the Trustee........................................................... 32
ARTICLE FIVE REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT...................... 32
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default............ 32
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.................... 34
SECTION 5.3 Application of Proceeds.......................................................... 36
SECTION 5.4 Suits for Enforcement............................................................ 37
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings.............................. 37
SECTION 5.6 Limitations on Suits by Securityholders.......................................... 37
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits................ 38
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.......... 38
SECTION 5.9 Control by Securityholders....................................................... 38
SECTION 5.10 Waiver of Past Defaults.......................................................... 39
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances..... 39
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs..................... 39
ARTICLE SIX CONCERNING THE TRUSTEE............................................................... 40
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default..... 40
SECTION 6.2 Certain Rights of the Trustee.................................................... 41
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof.............................................................. 43
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc......................... 43
SECTION 6.5 Moneys Held by Trustee........................................................... 43
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim.................. 43
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc........................... 44
SECTION 6.8 Disqualification of Trustee; Conflicting Interests............................... 44
SECTION 6.9 Persons Eligible for Appointment as Trustee...................................... 44
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SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee........................ 44
SECTION 6.11 Acceptance of Appointment by Successor Trustee................................... 46
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee........... 47
SECTION 6.13 Preferential Collection of Claims Against the Company............................ 47
ARTICLE SEVEN CONCERNING THE SECURITYHOLDERS....................................................... 47
SECTION 7.1 Evidence of Action Taken by Securityholders...................................... 47
SECTION 7.2 Proof of Execution of Instruments................................................ 48
SECTION 7.3 Holders to Be Treated as Owners.................................................. 48
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding............................... 48
SECTION 7.5 Right of Revocation of Action Taken.............................................. 49
SECTION 7.6 Record Date for Determination of Holders Entitled to Vote........................ 49
ARTICLE EIGHT SUPPLEMENTAL INDENTURES.............................................................. 49
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders....................... 49
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.......................... 51
SECTION 8.3 Effect of Supplemental Indenture................................................. 52
SECTION 8.4 Documents to Be Given to Trustee................................................. 52
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures..................... 52
ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE............................................ 52
SECTION 9.1 Company May Consolidate, etc., on Certain Terms.................................. 52
SECTION 9.2 Securities to be Secured in Certain Events....................................... 53
SECTION 9.3 Successor Corporation Substituted................................................ 53
SECTION 9.4 Opinion of Counsel to Trustee.................................................... 54
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS............................ 54
SECTION 10.1 Satisfaction and Discharge of Indenture.......................................... 54
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities.............. 56
SECTION 10.3 Repayment of Moneys Held by Paying Agent......................................... 56
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent...................... 56
SECTION 10.5 Reinstatement of Company's Obligations........................................... 57
ARTICLE ELEVEN MISCELLANEOUS PROVISIONS............................................................. 57
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SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability............................................................. 57
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders...... 57
SECTION 11.3 Successors and Assigns of Company Bound by Indenture............................. 58
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders...................... 58
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained
Therein.......................................................................... 58
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.................................. 59
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act.................. 59
SECTION 11.8 New York Law to Govern........................................................... 60
SECTION 11.9 Counterparts..................................................................... 60
SECTION 11.10 Effect of Headings............................................................... 60
SECTION 11.11 Determination of Principal Amount................................................ 60
ARTICLE TWELVE REDEMPTION OF SECURITIES AND SINKING FUNDS........................................... 60
SECTION 12.1 Applicability of Article......................................................... 60
SECTION 12.2 Notice of Redemption; Partial Redemptions........................................ 60
SECTION 12.3 Payment of Securities Called for Redemption...................................... 62
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption.... 62
SECTION 12.5 Mandatory and Optional Sinking Funds............................................. 63
SECTION 12.6 Repayment at the Option of the Holders........................................... 65
ARTICLE THIRTEEN HOLDERS' MEETINGS.................................................................... 65
SECTION 13.1 Purposes of Meetings............................................................. 65
SECTION 13.2 Call of Meetings by Trustee...................................................... 66
SECTION 13.3 Call of Meetings by Company or Holders........................................... 66
SECTION 13.4 Qualifications for Voting........................................................ 66
SECTION 13.5 Regulations...................................................................... 66
SECTION 13.6 Voting........................................................................... 67
SECTION 13.7 No Delay of Rights by Meeting.................................................... 67
SIGNATURES
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THIS INDENTURE, dated as of June 1, 2002, between NCR Corporation, a
Maryland corporation (the "Company"), and The Bank of New York, a New York
banking corporation, as Trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Company has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more Series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the Trust
Indenture Act, including terms defined therein by reference to the Securities
Act (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole, as supplemented and amended
from time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Additional Amounts" has the meaning specified in Section 3.8.
"Attributable Debt" has the meaning specified in Section 3.7.
"Board of Directors" means either the Board of Directors of the Company
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, except as may otherwise be provided in the form
of Securities of any particular Series, with respect to any Place of Payment,
any day, other than a Saturday or Sunday, that is not a legal holiday, or a day
on which banking institutions are authorized or required by law or regulation to
close in New York, New York or that Place of Payment, or, with respect to
Securities denominated in a Foreign Currency, the capital city of the country of
such Foreign Currency, or, with respect to Securities denominated in the Euro,
Brussels, Belgium.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person identified as "Company" in the first
paragraph hereof and, subject to Article Nine, its successors and assigns.
"Company Notice" means the confirmation of the Company signed by an
officer, transmitted by facsimile and confirmed in writing to the Trustee of the
terms of the issuance of any Securities issuable in Tranches.
"Component Currency" has the meaning specified in Section 2.12.
"Consolidated Net Tangible Assets" means, as of any particular time,
the total amount of assets (less applicable reserves) after deducting therefrom
(a) all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being computed and
excluding current maturities of long-term indebtedness), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, all as shown in the latest quarterly consolidated
balance sheet of the Company contained in the Company's then most recent annual
report to stockholders or quarterly report filed with the Commission, as the
case may be, except that assets shall include an amount equal to the
Attributable Debt in respect of any Sale and Lease-Back Transaction not
capitalized on such balance sheet.
"Conversion Date" has the meaning specified in Section 2.12.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country that issued such Currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the Euro both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities, or (iii) any currency unit
(or composite currency) other than the Euro for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is,
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at the date as of which this Indenture is dated, located at 101 Barclay Street,
Floor 21 West, New York, New York 10286 Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Holders and the Company).
"Coupon" means any interest coupon appertaining to any Security.
"Coupon Security" means any Security authenticated and delivered with
one or more Coupons appertaining thereto.
"Currency" means any currency or currencies, composite currency,
currency unit or currency units including, without limitation, the Euro, issued
by the government of one or more countries or by any reorganized confederation
or association of such governments.
"Currency Determination Agent" means the New York Clearing House Bank,
if any, from time to time selected by the Company for purposes of Section 2.12.
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 2.12.
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 2.12.
"Euro" means the single currency of the participating member states of
the European Union as defined under EC Regulation 1103/97 adopted under Article
235 of the Treaty on European Union and under EC Regulation 974/98 adopted under
Article 1091(4) of the Treaty on European Union or any successor European
legislation from time to time.
"European Communities" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Rate Officer's Certificate" means a certificate setting forth
(i) the applicable Market Exchange Rate or the applicable quotation and (ii) the
Dollar or Foreign Currency amounts payable on the basis of such Market Exchange
Rate or quotation in respect of the principal of and interest on the applicable
series of Registered Securities, signed by the treasurer or any assistant
treasurer of the Company, and delivered to the Trustee.
"Foreign Currency" means any Currency, including, without limitation,
the Euro, issued by the government of one or more countries other than the
United States of America or by any recognized confederation or association of
such governments.
3
"Government Obligations" means securities that are (i) direct
obligations of the government which issued the currency in which the Securities
of a particular Series are denominated or (ii) obligations of a Person
controlled or supervised by, or acting as an agency or instrumentality of, the
government which issued the currency in which the Securities of such Series are
denominated, the payment of which obligations is unconditionally guaranteed by
such government, and which, in either case, are full faith and credit
obligations of such government, are denominated in the currency in which the
Securities of such Series are denominated and which are not callable or
redeemable at the option of the issuer thereof.
"Holder," "Holder of Securities," "Securityholder" or other similar
terms mean the bearer of an Unregistered Security or a Registered Holder of a
Registered Security and, when used with respect to any Coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular Series of
Securities established as contemplated hereunder.
"interest," when used with respect to non-interest bearing Securities,
means interest payable at maturity and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 3.8 or
otherwise, includes such Additional Amounts.
"Market Exchange Rate" has the meaning specified in Section 2.12.
"non-United States Person" means a Person other than a United States
Person.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Company and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 11.5, if and to the extent required hereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
4
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the specified
Currency shall have been deposited in trust with the Trustee or with
any paying agent (other than the Company) or shall have been set aside,
segregated and held in trust by the Company for the holders of such
Securities (if the Company shall act as its own paying agent), provided
that if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.9 (except with respect to any
such Security as to which proof satisfactory to the Trustee and the
Company is presented that such Security is held by a person in whose
hands such Security is a legal, valid and binding obligation of the
Company).
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to
Section 3.2.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Principal Property" means any manufacturing, warehouse, distribution
or research and development plant or facility which is located within the
continental United States of America and is owned by the Company or any
Restricted Subsidiary, except any such plant or facility which the Board of
Directors or a duly authorized committee thereof by resolution declares is not
of material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety and which, when taken together with all
other manufacturing, warehouse, distribution and research and development plants
and facilities as to which such a declaration has been made, are so declared by
the Board of Directors or a duly authorized committee thereof to be not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety.
"Registered Holder" when used with respect to a Registered Security
means the person in whose name such Security is registered in the Security
register.
"Registered Security" means any Security registered in the Security
register.
5
"Registrar" has the meaning specified in Section 3.2.
"Responsible Officer" when used with respect to the Trustee shall mean
any officer within the corporate trust department (or any successor group) of
the Trustee including any vice president, assistant vice president, assistant
secretary, assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred at the Corporate Trust Office because of his
or her knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary (i) substantially all the
property of which is located within the continental United States of America,
(ii) which owns a Principal Property, and (iii) in which the Company's
investment, direct or indirect and whether in the form of equity, debt or
advances, as shown on the consolidating balance sheet used in the preparation of
the latest quarterly consolidated financial statements of the Company preceding
the date of determination, is in excess of 5% of the total consolidated assets
of the Company as shown on such quarterly consolidated financial statements.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 3.7.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means a series of Securities. Except
in Sections 1.1 - "Outstanding," 2.3 and 7.4 and Articles Five, Six and Eleven,
the terms "Series" or "Series of Securities" shall also mean a Tranche in the
event that the applicable Series may be issued in separate Tranches.
"Specified Amount" has the meaning specified in Section 2.12.
"Subsidiary" means any corporation which is consolidated in the
Company's accounts and any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned or controlled by the Company, or by
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Tranche" means all Securities of the same Series which have the same
issue date, maturity date, interest rate or method of determining interest, and,
in the case of Original Issue Discount Securities, which have the same issue
price.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, any successor
trustee.
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"Trust Indenture Act" (except as otherwise provided in Sections 8.1 and
8.2) means the Trust Indenture Act of 1939, as amended, as in force at the date
as of which this Indenture was originally executed.
"United States of America" means the United States of America, its
territories, its possessions and other areas subject to its political
jurisdiction as of the date of this Indenture.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 2.3, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source. For purposes of this definition, the term United
States means the United States of America (including the states and the District
of Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
"Unregistered Security" means any Security not registered in the
Security register as to principal.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"Valuation Date" has the meaning specified in Section 2.12.
"vice president" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president."
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made part of this Indenture.
The following Trust Indenture Act term used in this Indenture has the
following meaning:
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by Commission rule have the meanings assigned to them
by such definitions.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series and the
Coupons, if any, shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution of the Board
of Directors or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture (the provisions of which shall be
7
appropriate to reflect the terms of each Series of Securities, including the
currency or denomination, which may be Dollars or any Foreign Currency) and may
have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons, if any.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-----------------------------
Authorized Signatory
[or
--------------------------------,
as Authentication Agent
By
-----------------------------
Authorized Officer]
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series,
(1) the title of the Securities of the Series (which title
shall distinguish the Securities of the Series from all other
Securities issued by the Company);
8
(2) any limit upon the aggregate principal amount of the
Securities of the Series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Sections 2.8, 2.9, 2.11 or 12.3);
(3) if other than 100% of their principal amount, the
percentage of their principal amount at which the Securities of the
Series will be offered;
(4) the date or dates on which the principal of the
Securities of the Series is payable;
(5) the rate or rates, which may be fixed or variable, at
which the Securities of the Series shall bear interest, if any, the
date or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable and, in the case
of Registered Securities, the record dates for the determination of
Holders to whom interest is payable;
(6) the place or places where the principal of and interest
on Securities of the Series shall be payable (if other than as provided
in Section 3.2);
(7) the price or prices at which, the period or periods
within which and the terms and conditions upon which Securities of the
Series may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise;
(8) if other than the principal amount thereof, the portion
of the principal amount of Securities of the Series which shall be
payable upon declaration of acceleration of the maturity pursuant to
Section 5.1 or provable in bankruptcy pursuant to Section 5.2;
(9) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the Series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and the
price or prices in the Currency in which the Securities of such Series
are payable, at which and the period or periods within which and the
terms and conditions upon which Securities of the Series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(10) the issuance as Registered Securities or Unregistered
Securities or both, and the rights of the Holders to exchange
Unregistered Securities for Registered Securities of the Series or to
exchange Registered Securities of the Series for Unregistered
Securities of the Series and the circumstances under which any such
exchanges, if permitted, may be made;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations, which may be in Dollars or any
Foreign Currency, in which Securities of the Series shall be issuable;
(12) the form of the Securities (or forms thereof if
Unregistered and Registered Securities shall be issuable in such
Series), including such legends as required by law or
9
as the Company deems necessary or appropriate, the form of any Coupons
or temporary global security which may be issued and the forms of any
certificates which may be required hereunder or which the Company may
require in connection with the offering, sale, delivery or exchange of
Unregistered Securities;
(13) the Currency or Currencies in which payments of interest
or principal and other amounts are payable with respect to the
Securities of the Series are to be denominated, payable, redeemable or
repurchasable, as the case may be;
(14) whether Securities of the Series are issuable in
Tranches;
(15) whether, and under what circumstances, the Securities of
any Series shall be convertible into Securities of any other Series;
(16) if other than the Trustee, any trustees, authenticating
or paying agents, transfer agents or registrars or any other agents
with respect to the Securities of such Series;
(17) if the Securities of such Series do not bear interest,
the applicable dates for purposes of Section 4.1 hereof;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the Series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(19) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 3.8 on the Securities of the Series to any Holder who is a
non-United States Person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option); provided, however, that no Additional Amounts shall
be deemed to be payable in connection with any Series of Securities
unless such Additional Amounts are specifically identified as such in
the Securities or relevant supplemental indenture; and
(20) any other terms or conditions upon which the Securities
of the Series are to be issued (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one Series shall be substantially identical
except as to denomination, except as provided in the immediately succeeding
paragraph, and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one Series need not be issued at the same time,
and unless otherwise provided, a Series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such Series or to
establish additional terms of such Series of Securities (which additional terms
shall only be applicable to unissued or additional Securities of such Series).
10
Each Series may be issued in one or more Tranches. Except as provided
in the foregoing paragraph, all Securities of a Tranche shall have the same
issue date, maturity date, interest rate or method of determining interest, and,
in the case of Original Issue Discount Securities, the same issue price.
SECTION 2.4 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series having attached thereto appropriate
Coupons, if any, executed by the Company to the Trustee for authentication, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the written order of the Company, signed by both (a) the chairman of its Board
of Directors, or any vice chairman of its Board of Directors, or its president
or any vice president and (b) by its treasurer or any assistant treasurer,
secretary or any assistant secretary without any further action by the Company.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive and, subject to Section 6.1, shall be fully protected in
relying upon:
(1) a copy of any resolution or resolutions of the Board of
Directors relating to such Series, in each case certified by the
secretary or an assistant secretary of the Company;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms
of the Securities of such Series as required pursuant to Sections 2.1
and 2.3, respectively, and prepared in accordance with Section 11.5;
(4) an Opinion of Counsel, prepared in accordance with
Section 11.5, which shall state:
(a) that the form or forms and terms of such
Securities and Coupons, if any, have been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture;
(b) that such Securities and Coupons, if any, have
been duly authorized, and, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization or other laws relating to
or affecting the enforcement of creditors' rights and by general
equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(c) that all laws and requirements in respect of the
execution and delivery by the Company of the Securities and
Coupons, if any, and the related supplemental indenture, if any,
have been complied with;
11
(d) the registration statement, if any, relating to
the Securities of such series and any amendments thereto has
become effective under the Securities Act and, to the best
knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or threatened;
(e) no consent, approval, authorization or order of
any court or governmental agency or body in the United States is
required for the issuance of the Securities of such Series,
except such as have been obtained and such as may be required
under the blue sky laws of any jurisdiction in the United States
in connection with the purchase and distribution of the
Securities of such Series;
(f) neither the issue nor sale of the Securities of
such Series will contravene the charter or by-laws of the Company
or will conflict with, result in a breach of or constitute a
default under the terms of any indenture or other agreement or
instrument known to such counsel to which the Company or any of
its Subsidiaries is a party or is bound, or any order or
regulation known to such counsel to be applicable to the Company
or any of its Subsidiaries of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Company or any of its Subsidiaries; and
(g) the authentication and delivery of the Securities
of such series by the Trustee in accordance with the directions
of the Company so to do, and the Company's execution and delivery
of the Securities of such series, will not violate the terms of
this Indenture;
provided, however, that in the case of any Series issuable in Tranches, if the
Trustee has previously received the documents referred to in Section 2.4(1)-(5)
with respect to such Series, the Trustee shall authenticate and deliver
Securities of such Series executed and delivered by the Company for original
issuance upon receipt by the Trustee of the applicable Company Notice.
The Trustee shall have the right to decline to authenticate and deliver
any Securities and Coupons, if any, under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Company or if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under this Indenture in a
manner not reasonably acceptable to the Trustee.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10, together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Company by both (a) its chairman or its president or any vice
president and (b) its treasurer or
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any assistant treasurer or its secretary or any assistant secretary, which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee. Any Coupons attached
to any Unregistered Security shall be executed on behalf of the Company by the
manual or facsimile signature of any such officer of the Company.
In case any officer of the Company who shall have signed any of the
Securities or Coupons shall cease to be such officer before the Security or
Coupon so signed shall be authenticated (in the case of the Securities) and
delivered by the Trustee or disposed of by the Company, such Security or Coupon
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Security or Coupon had not ceased to be such officer of
the Company; and any Security or Coupon may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Security or
Coupon, shall be the proper officers of the Company, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
The Trustee shall not authenticate or deliver any Unregistered Security
until any matured Coupons appertaining thereto have been detached and canceled,
except as otherwise provided or permitted by this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable in denominations as shall be
specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any Series, the Securities of
such Series shall be issuable in denominations of $1,000 and any multiple
thereof, which may be in Dollars or any Foreign Currency, and interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest from the date and shall be payable on the dates, in each case, which
shall be specified as contemplated by Section 2.3.
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Interest on any Security which is payable, and is punctually paid or
duly provided for, on any interest payment date shall be paid, in the case of
Registered Securities, to the person in whose name that Security (or one or more
predecessor Securities) is registered at the close of business on the regular
record date for the payment of such interest and, in the case of Unregistered
Securities, upon surrender of the Coupon appertaining thereto in respect of the
interest due on such interest payment date.
The term "record date" as used with respect to any interest payment
date (except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, if such interest payment date is the first day
of a calendar month, the close of business on the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the close of business on the first day of such calendar
month, whether or not such record date is a Business Day.
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 (called
"defaulted interest" for the purpose of this Section) shall forthwith cease to
be payable to the Registered Holder on the relevant record date by virtue of his
having been such Holder; and such defaulted interest may be paid by the Company,
at its election in each case, as provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any defaulted
interest to the persons in whose names any such Registered Securities
(or their respective predecessor Securities) are registered at the
close of business on a special record date for the payment of such
defaulted interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Security of such Series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the persons entitled to such
defaulted interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such defaulted
interest in respect of Registered Securities of such Series which shall
be not more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such defaulted interest and the special record date
thereof to be mailed, first class postage prepaid, to each Registered
Holder at his address as it appears in the Security register, not less
than 10 days prior to such special record date. Notice of the proposed
payment of such defaulted interest and the special record date therefor
having been mailed as aforesaid, such defaulted interest in respect of
Registered Securities of such Series shall be paid to the person in
whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such
defaulted interest shall no longer be payable pursuant to the following
clause (2).
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(2) The Company may make payment of any defaulted interest
on the Registered Securities of any Series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which the Securities of that Series may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such payment shall be deemed practicable by the Trustee.
Any defaulted interest payable in respect of any Security of any Series
which is not a Registered Security shall be payable pursuant to such procedures
as may be satisfactory to the Trustee in such manner that there is no
discrimination as between the Holders of Registered Securities and other
Securities of the same Series, and notice of the payment date therefor shall be
given by the Trustee, in the name and at the expense of the Company, by
publication at least once in a newspaper of general circulation in New York, New
York and London, England.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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 2.8 Registration, Transfer and Exchange. The Company will
keep at the office or agency of the Trustee to be maintained for the purpose as
provided in Section 3.2 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Registered Securities as in this Article Two provided. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any Series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same Series in
authorized denominations for a like aggregate principal amount.
At the option of the Holder thereof, Unregistered Securities of a
Series, which by their terms are registerable as to principal and interest, may,
to the extent and under the circumstances specified pursuant to Section 2.3, be
exchanged for Registered Securities of such Series, as may be issued by the
terms thereof. At the option of the Holder thereof, Registered Securities of a
Series, which by their terms provide for the issuance of Unregistered
Securities, may, to the extent and under the circumstances specified pursuant to
Section 2.3, be exchanged for Unregistered Securities of such Series. Securities
so issued in exchange for other Securities shall be of any authorized
denomination and of like principal amount and maturity date, interest rate or
method of determining interest, and shall be issued upon surrender of the
Securities for which they are to be exchanged and, in the case of Coupon
Securities, together with all unmatured Coupons and matured Coupons in default
appertaining thereto, at the office of the Company provided for in Section 3.2
and upon payment, if the Company shall require, of charges provided therein.
Unregistered Securities of any Series issued in exchange for Registered
Securities of such Series between the regular record date for such Registered
Security and the next interest payment date will be issued without the Coupon
relating to such interest payment date, and
15
Unregistered Securities surrendered in exchange for Registered Securities
between such dates shall be surrendered without the Coupon relating to such
interest payment date. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, an Unregistered Security will not be delivered in
exchange for a Registered Security or Securities unless the Trustee receives a
certificate signed by the person entitled to delivery of such Security or other
items or documents fulfilling such conditions as shall be required by
regulations of the United States Department of the Treasury, or shall be
notified by the Company that such a certificate shall not be required by such
regulations; provided, however, that no such Unregistered Security shall be
delivered by the Trustee if the Trustee or such agent shall have, or shall have
been notified in writing by the Company that the Company has, actual knowledge
that such certificate is false.
Upon presentation for registration of any Unregistered Securities of
any Series which by its terms is registerable as to principal, at the office or
agency of the Company to be maintained as provided in Section 3.2, such Security
shall be registered as to principal in the name of the Holder thereof and such
registration shall be noted on such Security. Any Security so registered shall
be transferable on the registry books of the Company upon presentation of such
Security at such office or agency for similar notation thereon, but such
Security may be discharged from registration by being in a like manner
transferred to bearer, whereupon transferability by delivery shall be restored.
Except as otherwise provided pursuant to Section 2.3 hereof, Unregistered
Securities shall continue to be subject to successive registrations and
discharges from registration at the option of the Holders thereof.
Unregistered Securities shall be transferable by delivery, except while
registered as to principal. Registration of any Coupon Security shall not effect
the transferability by delivery of the Coupons appertaining thereto which shall
continue to be payable to bearer and transferable by delivery.
All Securities and Coupons issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
and Coupons surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of Securities for
redemption under Article Twelve or (ii) to register the
16
transfer of or exchange any Security so selected for redemption in whole or in
part, except, in the case of any Security to be redeemed in part, the portion
thereof not redeemed.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or Coupon shall become
mutilated, defaced or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and deliver, a new Security of the same
Series or Coupon, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security or Coupon, or in
lieu of and substitution for the Security or Coupon so destroyed, lost or
stolen. In every case, the applicant for a substitute Security or Coupon shall
furnish to the Company and to the Trustee and to any agent of the Company or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In case any Security
or Coupon which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security or Coupon, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated or defaced Security or Coupon); provided, however, that
interest represented by Coupons shall be payable only upon presentation and
surrender of such Coupons at an office or agency of the Company located outside
of the United States, unless otherwise provided pursuant to Section 2.3, if the
applicant for such payment shall furnish to the Company and to the Trustee and
any agent of the Company or the Trustee such security or indemnity as any of
them may require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and of
the ownership thereof.
Every substitute Security of any Series or Coupon issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities of such Series or Coupons duly authenticated and delivered hereunder.
All Securities or Coupons shall be held and owned upon the express condition
that, to the extent permitted by the law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
17
SECTION 2.10 Cancellation of Securities. All Securities surrendered
for payment, redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund and all Coupons
surrendered for payment or exchange, shall, if surrendered to the Company or any
agent of the Company or the Trustee, be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof, except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall dispose
of the cancelled Securities and Coupons held by it in accordance with its
customary procedures. If the Company shall acquire any of the Securities and
Coupons, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities and Coupons unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any Series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities for such Series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any Series may be issued
as Registered Securities or Unregistered Securities with or without Coupons
attached thereto, of any authorized denomination, and substantially in the form
of the definitive Securities of such Series but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Company shall execute and shall furnish definitive
Securities of such Series and thereupon temporary Securities of such Series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Company for that purpose pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such Series a like aggregate principal amount of definitive Securities of the
same Series of authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any Series shall be entitled to the same benefits
under this Indenture as definitive Securities of such Series.
SECTION 2.12 Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any Series with respect
to which the Holders of such Securities have not made the election provided for
in paragraph (b) below, the following payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph
(e) below, payment of the principal of any Registered Security will be
made at the Place of Payment by delivery of a check in the Currency in
which the Security is denominated on the payment date against surrender
of such Registered Security, and any interest on any Registered
Security will be paid at the Place of Payment by mailing a check in the
Currency in which the Securities were issued to the Person entitled
thereto at the address of such Person appearing on the Security
register.
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(2) Payment of the principal of and interest on such Security
may also, subject to applicable laws and regulations, be made at such
other place or places as may be designated by the Company by any
appropriate method.
(b) With respect to Registered Securities of any Series, the
following payment provisions shall apply, except as otherwise provided in
paragraphs (e) and (f) below:
(1) The Board of Directors may provide with respect to any
Series of such Securities that Holders shall have the option to receive
payments of principal of and interest on such Security in any of the
Currencies which may be designated for such election in such Security
by delivering to the Trustee a written election, to be in form and
substance satisfactory to the Trustee, not later than the close of
business on the record date immediately preceding the applicable
payment date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any such
change must be made not later than the close of business on the record
date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change may be
made with respect to payments to be made on any Security with respect
to which notice of redemption has been given by the Company pursuant to
Article Twelve). Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than the close of
business on the applicable record date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in
paragraph (a) of this Section 2.12. Payment of principal shall be made
on the payment date against surrender of such Securities. Payment of
principal and interest shall be made at the Place of Payment by mailing
a check in the applicable currency to the Person entitled thereto at
the address of such Person appearing on the Security register.
(2) Payment of the principal of and interest on such Security
may also, subject to applicable laws and regulations, be made at such
other place or places as may be designated by the Company by any
appropriate method.
(c) Payment of the principal of any Unregistered Security and of
interest on any Coupon Security will be made at such place or places outside the
United States as may be designated by the Company by any appropriate method only
in the Currency in which the Security is payable (except as provided in
paragraph (e) below) on the payment date against surrender of the Unregistered
Security, in the case of payment of principal, or the relevant Coupon, in the
case of payment of interest. Except as provided in paragraph (e) below, payment
with respect to Unregistered Securities and Coupons will be made by check,
subject to any limitations on the methods of effecting such payment as shall be
specified in the terms of the Security established as provided in Section 2.3
and as shall be required under applicable laws and regulations. Payment of the
principal of and interest on Unregistered Securities may also, subject to
applicable laws and regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(d) Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company a written notice
specifying, in the Currency in which each Series of the Securities are
denominated, the respective aggregate amounts of
19
principal of and interest on the Securities to be made on such payment date,
specifying the amounts so payable in respect of the Registered and the
Unregistered Securities and in respect of the Registered Securities as to which
the Holders shall have elected to be paid in another Currency as provided in
paragraph (b) above. If the Board of Directors has provided for the election
referred to in paragraph (b) above and if at least one Holder has made such
election, then not later than the second Business Day preceding such record date
the Company will deliver to the Trustee an Exchange Rate Officer's Certificate
in respect of the Dollar or Foreign Currency payments to be made on such payment
date. The Dollar or Foreign Currency amount receivable by Holders of Registered
Securities who have elected payment in another Currency as provided in paragraph
(b) above shall be determined by the Company on the basis of the applicable
Market Exchange Rate in effect on the second Business Day (the "Valuation Date")
prior to such payment date and set forth in the applicable Exchange Rate
Officer's Certificate.
(e) If a Conversion Event occurs with respect to a Foreign Currency
in which any of the Securities are denominated or payable, then with respect to
each date for the payment of principal of, premium, if any, and interest on the
applicable Foreign Currency denominated Securities occurring after the last date
on which the Foreign Currency was so used (the "Conversion Date"), the Dollar
shall be the currency of payment for use on each such payment date. The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any Paying
Agent to the Holders of such Securities with respect to such payment date shall
be, in the case of a Foreign Currency other than a currency unit, the Dollar
Equivalent of the Foreign Currency or, in the case of a currency unit, the
Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent in the manner provided in paragraphs (g) or (h)
below.
(f) If the Holder of a Registered Security elects payment in a
specified Currency as provided for by paragraph (b) and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent as of each Valuation Date and
shall be obtained by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Currency Determination Agent as of each Valuation Date and shall be the
sum obtained by adding together the results obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate on
the Valuation Date for such Component Currency.
(i) For purposes of this Section 2.12 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including but not
limited to the Euro.
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A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the
relevant currency unit, including but not limited to the Euro, on the Conversion
Date. If after the Conversion Date the official unit of any Component Currency
is altered by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are consolidated into
a single currency, the respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a Specified Amount
and such single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by
specified amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of such
replacement, shall be equal to the Specified Amount of such former Component
Currency and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited to, the Euro, a
Conversion Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted in New York City on the
Valuation Date as certified for customs purposes by the Federal Reserve Bank of
New York. If such rates are not available for any reason with respect to one or
more Currencies for which an exchange rate is required, the Currency
Determination Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any currency by reason of foreign exchange regulations
or otherwise, the market to be used in respect of such currency shall be that
upon which a nonresident issuer of securities designated in such currency would
purchase such currency in order to make payments in respect of such securities.
All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in Specified Amounts
as specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee for the relevant series of Securities and all Holders of
such Securities.
In the event that a Conversion Event has occurred with respect to a
Foreign Currency, the Company, after learning thereof, will immediately give
notice thereof to the Trustee (and the
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Trustee will promptly thereafter give notice in the manner provided in Section
11.4 to the affected Holders) specifying the Conversion Date. In the event that
a Conversion Event has occurred with respect to the Euro or any other currency
unit in which Securities are denominated or payable, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 11.4 to
the affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event of any subsequent
change in any Component Currency as set forth in the definition of Specified
Amount above, the Company, after learning thereof, will similarly give notice to
the Trustee.
The Trustee shall be fully justified and protected in conclusively
relying on and acting upon the information so received by it from the Company
and the Currency Determination Agent and shall not otherwise have any duty or
obligation to determine such information independently.
SECTION 2.13 Compliance with Certain Laws and Regulations. If any
Unregistered Securities or Coupon Securities are to be issued in any Series of
Securities, the Company will use reasonable efforts to provide for arrangements
and procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that Unregistered Securities or Coupon Securities are sold or
resold, exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company.
SECTION 2.14 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" or "ISIN" numbers (if then generally in use), and, if so, the
Trustee shall indicate the "CUSIP" or "ISIN" numbers of the Securities in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company will promptly notify the Trustee of
any change in the "CUSIP" or "ISIN" numbers.
SECTION 2.15 Securities in Global Form. If Securities of or within a
Series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced or increased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as shall be specified
therein or in the Company order to be delivered to the Trustee pursuant to
Section 2.4 or 2.11. Subject to the provisions of Section 2.4 and, if
applicable, Section 2.11, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company order. Any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 11.5 and need not be accompanied by an Opinion of Counsel.
22
The provisions of the last paragraph of Section 2.4 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 11.5 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 2.4.
Notwithstanding the provisions of Section 3.1, unless otherwise
specified as contemplated by Section 2.4, payment of principal of and interest
on any Security in permanent global form shall be made to the Person or Persons
specified in such Security.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Company covenants
and agrees for the benefit of each Series of Securities that it will duly and
punctually pay or cause to be paid (in the Currency in which the Securities of
such Series and Coupons, if any, are payable, except as otherwise provided
pursuant to Section 2.3 for the Securities of such Series and except as provided
in Section 2.12(b), (e) and (f) hereof) the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of the Securities
of such Series, any Coupons appertaining thereto and this Indenture.
The interest on Unregistered Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature at the office of a Paying
Agent outside the United States. The interest on any temporary Unregistered
Security shall be paid, as to any installment of interest evidenced by a Coupon
attached thereto, if any, only upon presentation and surrender of such Coupon,
and, as to the other installments of interest, if any, only upon presentation of
such Securities for notation thereon of the payment of such interest.
SECTION 3.2 Offices for Payment, etc. So long as any of the
Securities remain outstanding, the Company will maintain the following for each
Series: an office or agency (a) where the Securities may be presented for
payment, (b) where the Securities may be presented for registration of transfer
and for exchange as provided in this Indenture ("Registrar") and (c) where
notices and demands to or upon the Company in respect of the Securities or of
this Indenture may be served. The Company will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. In case the Company shall fail to so designate or maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the corporate trust office. Unless otherwise specified
pursuant to Section 2.3, the Trustee is appointed Paying Agent and Registrar.
So long as any Coupon Securities or Unregistered Securities of any
Series remain outstanding, the Company will (except as specified pursuant to
Section 2.3) maintain one or more offices or agencies outside the United States
in such city or cities as may be specified elsewhere in this Indenture or as
contemplated by Section 2.3, and shall maintain such office or
23
offices for a period of two years (or any period thereafter for which it is
necessary in order to conform to United States tax laws or regulations) after
the principal on such Coupon Securities or Unregistered Securities has become
due and payable, with respect to such Series where Coupons appertaining to
Securities of such Series or Unregistered Securities of such Series may be
surrendered or presented for payment, or surrendered for exchange pursuant to
Section 2.8 and where notices and demands to or upon the Company in respect of
Coupons appertaining to Securities of such Series or the Unregistered Securities
of such Series or of this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location and any change in the location, of
any such office or agency. If at any time the Company shall fail to maintain
such required office or agency or shall fail to furnish the Trustee with the
address thereof, presentations, surrenders, notices and demands in respect of
Unregistered Securities may be made or served at the Corporate Trust Office of
the Trustee and the corporate trust office of any authenticating agent appointed
hereunder, and presentations, surrenders, notices and demands in respect of
Coupons appertaining to Securities of any Series and Unregistered Securities may
be made or served at the corporate trust office of the Trustee in the other city
or cities referred to above; and the Company hereby appoints the Trustee and any
authenticating agent appointed hereunder its agents to receive all such
presentations, surrenders, notices and demands.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each Series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
Series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section,
(a) that it will hold all sums received by it as such Paying
Agent for the payment of the principal of or interest on the Securities
of such Series or Coupons (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such Series or
Coupons) in trust for the benefit of the Holders of the Securities of
such Series or Coupons or of the Trustee, and upon the occurrence of an
Event of Default and upon the written request of the Trustee, pay over
all such sums received by it to the Trustee,
(b) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Securities of such Series)
to make any payment of the principal of or interest on the Securities
of such Series or Coupons when the same shall be due and payable, and
(c) that it will give the Trustee notice of any change of
address of any Holder of which it is aware.
The Company will, prior to 10:00 a.m., New York City time, on each due
date of the principal of or interest on the Securities of such Series or
Coupons, deposit with the Paying
24
Agent a sum sufficient to pay such principal or interest so becoming due, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series or Coupons, it will, on or before each due date of the
principal of or interest on the Securities of such Series or Coupons, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such Series or Holders of such Coupons a sum sufficient to pay such principal or
interest so becoming due. The Company will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all Series of Securities or Coupons hereunder, or for
any other reason, pay or cause to be paid to the Trustee all sums held in trust
for any such Series by the Company or any Paying Agent hereunder, as required by
this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Company will deliver to
the Trustee for each Series of Securities on or before a date not more than 120
days after the end of each of its fiscal years ending after the date hereof
during which any Securities are outstanding a written statement (which need not
comply with Section 11.5), signed by two of its officers, one of which must be
the principal executive, principal financial or principal accounting officer of
the Company, stating that in the course of the performance of their duties as
officers of the Company they would normally have knowledge of any default by the
Company in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture (without regard to grace periods or notice
requirements), stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge and
the nature thereof.
SECTION 3.6 Limitation on Liens. (a) The Company will not, nor will
it permit any Restricted Subsidiary to, issue, assume or guarantee any
indebtedness for money borrowed (hereinafter in this Article Three called
"Debt"), secured by a mortgage, deed of trust, security interest, pledge, lien
or other encumbrance (mortgages, deeds of trust, security interests, pledges,
liens and other encumbrances being hereinafter in this Article Three called
"lien" or "liens") upon any Principal Property of the Company or any Restricted
Subsidiary or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or indebtedness are
now owned or hereafter acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guaranty of any such Debt that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Restricted Subsidiary
ranking equally with the Securities and then existing or thereafter created)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) such Debt so long as such Debt shall be so secured; provided, however,
that the foregoing restrictions shall not apply to Debt secured by:
25
(i) liens on property, shares of stock or indebtedness
(hereinafter in this Article Three called "property") of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) liens on property existing at the time of acquisition of
the affected property by the Company or a Restricted Subsidiary, or
liens to secure the payment of all or any part of the purchase price of
such property upon the acquisition of such property by the Company or a
Restricted Subsidiary or to secure any Debt incurred by the Company or
a Restricted Subsidiary prior to, at the time of, or within 360 days
after the later of the acquisition, the completion of construction
(including any improvements on an existing property) or the
commencement of commercial operation of such property, which Debt is
incurred for the purpose of financing all or any part of the purchase
price thereof or construction or improvements thereon; provided,
however, that in the case of any such acquisition, construction or
improvement the lien shall not apply to any property theretofore owned
by the Company or a Restricted Subsidiary, other than, in the case of
any such construction or improvement, any real property on which the
property so constructed, or the improvement, is located which in the
opinion of the Board of Directors or a duly authorized committee
thereof was, prior to such construction or improvement, substantially
unimproved for the use intended by the Company or such Restricted
Subsidiary;
(iii) liens on property of a Restricted Subsidiary securing
Debt owing to the Company or to another Restricted Subsidiary;
(iv) liens on property of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation or firm as an entirety
or substantially as an entirety to the Company or a Restricted
Subsidiary provided, however, that any such liens do not attach to or
affect property theretofore owned by the Company or such Restricted
Subsidiary;
(v) liens on property owned or leased by the Company or a
Restricted Subsidiary 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 in favor of any other country or any political subdivision
thereof, or in favor of holders of securities issued by any such
entity, pursuant to any contract or statute (including, without
limitation, liens to secure Debt of the industrial revenue bond type)
or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of construction of the
property subject to such liens;
(vi) liens existing at the date of this Indenture;
(vii) landlords' liens on fixtures located on premises leased
by the Company or a Restricted Subsidiary in the ordinary course of
business;
26
(viii) liens on property of the Company or a Restricted
Subsidiary to secure partial, progress, advance or other payments or
any Debt incurred for the purpose of financing all or any part of the
purchase price or the cost of construction, development, or substantial
repair, alteration or improvement of the property subject to such liens
if the commitment for the financing is obtained not later than one year
after the later of the completion of or the placing into operation
(exclusive of test and start-up periods) of such constructed,
developed, repaired, altered or improved property;
(ix) liens arising in connection with contracts and
subcontracts with or made at the request of the United States of
America, or any state thereof, or any department, agency or
instrumentality of the United States or any state thereof;
(x) mechanics', materialmen's, carriers' or other like liens
arising in the ordinary course of business (including construction of
facilities) in respect of obligations which are not due or which are
being contested in good faith;
(xi) any lien arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulations, which is
required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege,
franchise or license;
(xii) liens for taxes, assessments or governmental charges or
levies not yet delinquent, or liens for taxes, assessments or
governmental charges or levies already delinquent but the validity of
which is being contested in good faith;
(xiii) liens (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested
in good faith and, in the case of judgment liens, execution thereon is
stayed; or
(xiv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any lien
referred to in the foregoing clauses (i) to (xiii), inclusive,
provided, however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement lien, and that such extension,
renewal or replacement lien shall be limited to all or a part of the
property which secured the lien so extended, renewed or replaced (plus
improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section 3.6, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by liens which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
Debt of the Company and its Restricted Subsidiaries which (if originally issued,
assumed or guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (i)
through (xiv) above), does not at the time exceed 15% of Consolidated Net
Tangible Assets, as shown on the latest quarterly consolidated financial
statements of the Company preceding the date of determination.
27
SECTION 3.7 Limitation on Sale and Lease-Back. The Company will not,
nor will it permit any Restricted Subsidiary to, enter into any arrangement with
any person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property of the Company or any Restricted Subsidiary (whether
such Principal Property is now owned or hereafter acquired) (except for
temporary leases for a term of not more than three years and except for leases
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries), which Principal Property has been or is to be sold or transferred
by the Company or such Restricted Subsidiary to such person (herein referred to
as a "Sale and Lease-Back Transaction"), unless (a) the Company or such
Restricted Subsidiary would be entitled, pursuant to the provisions of Section
3.6, to issue, assume or guarantee Debt secured by a lien upon such Principal
Property at least equal in amount to the Attributable Debt in respect of such
arrangement without equally and ratably securing the Securities, provided,
however, that from and after the date on which such arrangement becomes
effective the Attributable Debt in respect of such arrangement, entered into
after the date hereof, shall be deemed for all purposes under Sections 3.6 and
3.7 to be Debt subject to the provisions of Section 3.6; or (b) the Company
shall apply an amount in cash equal to the Attributable Debt in respect of such
arrangement to the retirement (other than any mandatory retirement or by way of
payment at maturity), within 120 days of the effective date of any such
arrangement, of Debt of the Company or any Restricted Subsidiary (other than
Debt owned by the Company or any Restricted Subsidiary and other than Debt of
the Company which is subordinated to the Securities) which by its terms matures
at or is extendible or renewable at the option of the obligor to a date more
than twelve months after the date of the creation of such Debt.
The term "Attributable Debt" shall mean the present value (discounted
at the actual percentage rate inherent in such arrangement as determined in good
faith by the Company, compounded semi-annually) of the obligation of a lessee
for rental payments during the remaining term of any lease (including any period
for which such lease has been extended). Such rental payments shall not include
amounts payable by the lessee for maintenance and repairs, insurance, taxes,
assessments and similar charges and for contingent rents (such as those based on
sales). In case of any lease which is terminable by the lessee upon the payment
of a penalty, such rental payments shall also include such penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated. Any determination of any actual
percentage rate inherent in any such arrangement made in good faith by the
Company shall be binding and conclusive, and the Trustee shall have no duty with
respect to any determination made under this Section 3.7.
SECTION 3.8 Additional Amounts. If Securities of a Series provide for
the payment of additional amounts to any Holder who is a non-United States
Person in respect of any tax, assessment or governmental charge ("Additional
Amounts"), the Company will pay to the Holder of any Security of such Series or
any Coupon appertaining thereto such Additional Amounts as may be so provided by
Section 2.3. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or interest on, or in respect of, any Security of a
Series or payment of any related Coupon or the net proceeds received on the sale
or exchange of a Security of a Series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for by the terms of such
Series established pursuant to Section 2.3 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
28
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 2.3, if the
Securities of a Series provide for the payment of Additional Amounts, at least
10 days prior to each date of payment of principal or interest on which any
Additional Amount shall be payable, the Company will furnish the Trustee and the
Company's principal Paying Agent or Paying Agents, if other than the Trustee,
with a compliance certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of or interest on the Securities
of that Series shall be made to Holders of Securities of that Series or any
related Coupons who are non-United States Persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that Series. If any such withholding shall be required, then such
compliance certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that Series or
related Coupons and the Company will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section or in the event the Trustee shall not
withhold or deduct any sums as a result of the non-receipt of a compliance
certificate pursuant to this Section.
SECTION 3.9 Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee for the Securities of each
Series a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of each Series:
(a) semiannually and not more than 15 days after each record
date for the payment of interest on such Securities, as hereinabove
specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing securities in each
year, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
request such list to be as of a date not more than 15 days prior to the
time such information is furnished,
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provided that if and so long as the Trustee shall be the Security registrar for
such Series, such list shall not be required to be furnished but in any event
the Company shall be required to furnish such information concerning the Holders
of Coupon Securities and Unregistered Securities which is known to it; provided,
further, that the Company shall have no obligation to investigate any matter
relating to any Holder of an Unregistered Security or any Holder of a Coupon.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee for the Securities of each Series shall preserve, in as current
a form as is reasonably practicable, all information as to the names and
addresses of the Holders of each Series of Securities contained in the most
recent list furnished to it as provided in Section 4.1 or maintained by the
Trustee in its capacity as Security registrar for such Series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
(b) In case three or more Holders of Registered Securities of any
Series (hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in which
case the applicants must all hold Securities of such Series) or with Holders of
all Securities with respect to their rights under this Indenture or under such
Securities and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such Series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, as to the approximate cost of mailing
to such Securityholders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Securities, as the
case may be, whose name and address appear in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section, a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission together with
a copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best interests
of the Holders of Securities of such Series or all Securities, as the case may
be, or could be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written
30
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of such order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
(a) to file with the Trustee for the Securities of each Series,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the
Commissioner may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, or if the Company is not
required to file information, documents, or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, or in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Registered Securities in
the manner and to the extent required by Sections 4.4(a) and 11.4, within 30
days after the filing thereof with the Trustee, such summaries of any
information, documents, and reports required to be filed by the Company pursuant
to subsection (a) and (b) of this Section as may be required to be transmitted
to such Holders by rules and regulations prescribed from time to time by the
Commission; and
(d) to furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture. For
purposes of this paragraph, such compliance shall be
31
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each April 15
following the date of this Indenture deliver to Holders a brief report, dated as
of such April 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. In case one or more of the following Events of Default
(unless it is either inapplicable to a particular Series or it is specifically
deleted from or modified in the instrument establishing such Series and the form
of Security for such Series) shall have occurred and be continuing with respect
to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any
Security of such Series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of the Securities of such
Series as and when the same shall become due and payable either at maturity,
upon redemption (for any sinking fund payment or otherwise), by declaration or
otherwise; or
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such Series, or in this Indenture contained and relating to such
Series, for a period of 90 days after the date on which written notice
specifying such failure and requiring the Company to remedy the same and stating
that such notice is a "Notice of Default" hereunder shall have been given by
registered or certified mail to the Company by the Trustee for the Securities of
such Series, or to the Company and the Trustee by the Holders of at least
twenty-five percent (25%) in aggregate principal amount at maturity of the
Securities of such Series at the time outstanding; or
32
(d) the Company shall make an assignment for the benefit of
creditors, or shall file a petition in bankruptcy; or the Company shall be
adjudicated insolvent or bankrupt, or shall petition or shall apply to any court
having jurisdiction in the premises for the appointment of a receiver, trustee,
liquidator or sequestrator of, or for, the Company or any substantial portion of
the property of the Company; or the Company shall commence any proceeding
relating to the Company or any substantial portion of the property of the
Company under any insolvency, reorganization, arrangement, or readjustment of
debt, dissolution, winding-up, adjustment, composition or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect (hereinafter in
this subsection (d) called "Proceeding"); or if there shall be commenced against
the Company any Proceeding and an order approving the petition shall be entered,
or such Proceeding shall remain undischarged for a period of 60 days; or a
receiver, trustee, liquidator or sequestrator of, or for, the Company or any
substantial portion of the property of the Company shall be appointed and shall
not be discharged within a period of 60 days; or the Company by any act shall
indicate consent to or approval of or acquiescence in any Proceeding or the
appointment of a receiver, trustee, liquidator or sequestrator of, or for, the
Company or any substantial portion of the property of the Company; provided that
a resolution or order for winding-up the Company with a view to its
consolidation, amalgamation or merger with another company or the transfer of
its assets as a whole, or substantially as a whole, to such other company as
provided in Section 9.1 shall not make the rights and remedies herein
enforceable under this subsection (d) of Section 5.1 if such last-mentioned
company shall, as a part of such consolidation, amalgamation, merger or
transfer, and within 60 days from the passing of the resolution or the date of
the order, comply with the conditions to that end stated in Section 9.1; or
(e) any other Event of Default provided in the Supplemental Indenture
or resolution of the Board of Directors under which such Series of Securities is
issued or in the form of Security for such Series;
then and in each and every such case (other than an Event of Default with
respect to the Company specified in clause (d) of this Section 5.1), so long as
such Event of Default with respect to such Series shall not have been remedied
or waived, unless the principal of all Securities of such Series shall have
already become due and payable, either the Trustee for such Series or the
Holders of not less than twenty-five percent (25%) in aggregate principal amount
at maturity of the Securities of such Series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such Holders),
may declare the principal (or, in the case of Original Issue Discount
Securities, such principal amount as may be determined in accordance with the
terms thereof) of all the Securities of such Series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities of
such Series contained to the contrary notwithstanding. This provision, however,
is subject to the condition that if at any time after the principal of the
Securities of such Series (or, in the case of Original Issue Discount
Securities, such principal amount as may be determined in accordance with the
terms thereof) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay in the Currency in which the Securities of such
Series are payable (except as otherwise provided pursuant to Section 2.3 for the
Securities of such Series and except as provided in Section 2.12(b), (e) and (f)
hereof) all matured installments of interest, if any, upon all the Securities of
such Series and the principal of
33
any and all Securities of such Series which shall have become due otherwise than
by such acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the rate borne by the Securities of such Series
(or, in the case of Original Issue Discount Securities, at the yield to
maturity) to the date of such payment or deposit) and in Dollars such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel and all other expenses and liabilities incurred, and all
advances made, by the Trustee, its agents, attorneys and counsel and any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such Series which shall have become due by such acceleration,
shall have been remedied then and in every such case the Holders of a majority
in aggregate principal amount at maturity of the Securities of such Series then
Outstanding, by written notice to the Company and to the Trustee for the
Securities of such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon. If any Event of Default with respect to the Company
specified in clause (d) of this Section 5.1 occurs, all the principal of and
accrued and unpaid interest on the Securities then outstanding shall become
automatically due and payable without any declaration or other act on the part
of the Trustee or any Holder of Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any Series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity of
the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee for the Securities of such Series,
the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series and the Holders of any
Coupons appertaining thereto the whole amount that then shall have become due
and payable on all Securities of such Series or such Coupons for principal of or
interest, as the case may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest specified in the Securities of such Series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the Securities
of such Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
34
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities
and Coupons, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities and Coupons under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Company or other obligor under the Securities of any Series and Coupons, if any,
or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of any Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal (or, if the Securities of such Series are Original Issue
Discount Securities, such portion of the principal amount as may be due
and payable with respect to the Securities of such Series pursuant to a
declaration in accordance with Section 5.1 hereof) and interest owing
and unpaid in respect of the Securities of any Series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee,) and of the Securityholders and
the Holders of any Coupons appertaining thereto allowed in any judicial
proceedings relative to the Company or other obligor upon all
Securities of any Series, or to the creditors or property of the
Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any Series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Holders to make payments to the Trustee for the Securities
of such Series, and, in the event that such Trustee shall consent to
the making of payments directly to the Securityholders, to pay to such
Trustee such amounts as shall be sufficient to cover reasonable
compensation to such Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by such Trustee and each
predecessor Trustee and all other amounts due to such Trustee or any
predecessor Trustee pursuant to Section 6.6.
35
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities or any Coupon appertaining thereto, may be enforced
by the Trustee for the Securities of such Series without the possession of any
of the Securities of such Series or any Coupon appertaining thereto or the
production thereof at any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities and Holders of any Coupons in
respect of which such action was taken.
In any proceedings brought by the Trustee for the Securities of such
Series (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities and Coupons appertaining
thereto in respect to which such action was taken, and it shall not be necessary
to make any Holders of such Securities and Coupons appertaining thereto parties
to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee for the Securities of such Series pursuant to this Article in respect of
the Securities of any Series shall be applied in the following order at the date
or dates fixed by such Trustee and, in case of the distribution of such moneys
on account of principal or interest, upon presentation of the several Securities
and any Coupons appertaining thereto in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such Series in reduced principal amounts in exchange for the
presented Securities of like Series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
Series in respect of which moneys have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.6;
SECOND: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities
of such Series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
36
THIRD: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such Series for principal and
interest, with interest upon the overdue principal, and (to the extent
that payment of such interest is permissible by law and that such
interest has been collected by the Trustee) upon overdue installments
of interest at the same rate as the rate of interest specified in the
Securities of such Series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such Series, then to the payment of such principal and
interest without preference or priority of principal over interest or
of interest over principal, or of any installment of interest over any
other installment of interest, or of any Security of such Series over
any other Security of such Series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee for the Securities of any Series shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any Series or Holder of any Coupon shall have any right by virtue or
by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount of
the Securities of such Series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred therein or
thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being
37
expressly covenanted by the taker and Holder of every Security and by a Holder
of each Coupon appertaining thereto with every other taker and Holder of a
Security or Holder of any Coupon appertaining thereto and the Trustee, that no
one or more Holders of Securities of any Series or one or more Holders of any
Coupons appertaining thereto shall have any right in any manner whatever, by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or any other Holders
of such Coupons, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable Series and all the Holders of Coupons
appertaining thereto. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any provision in this Indenture and any provision
of any Security or Coupon, the right of any Holder of any Security and the right
of any Holder of any Coupon appertaining thereto to receive payment of the
principal of and interest on such Security at the respective rates, in the
respective amount and in the Currency therein prescribed on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee, to the Securityholders or to the Holder of
any Coupon appertaining thereto may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee, the Securityholders or Holders of
any Coupon.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such Series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be
38
taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the
Trustee shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all Series or of the Holders of any Coupons appertaining thereto
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any Series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such Series at the time Outstanding may on behalf of the Holders
of all the Securities of such Series and Holders of all Coupons, if any,
appertaining thereto waive any past default hereunder or its consequences,
except a default in the payment of the principal of or interest on any of the
Securities of such Series. In the case of any such waiver, the Company, the
Trustee, the Holders of the Securities of such Series and the Holder of any
Coupon appertaining thereto shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall transmit to the Securityholders of any
Series notice in the manner and to the extent provided in Section 11.4 of all
defaults which are known to it and which have occurred with respect to such
Series, such notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such Series or any default in the payment of any sinking fund
installment or analogous obligation in respect of any of the 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 or trustees or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such Series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security and
each Holder of any Coupon,
39
by his acceptance thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any Series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such Series, or, in the case of
any suit relating to or arising under clause (d) of Section 5.1 (if the suit
relates to Securities of more than one but less than all Series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Securities then Outstanding) of Section 5.1, 10%
in aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any Series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular Series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such Series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied duties shall be read
into this Indenture against the Trustee. In case an Event of Default with
respect to the Securities of a Series has occurred (which has not been cured or
waived) of which a Responsible Officer has actual knowledge, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any Series and after the curing or waiving
of all such Events of Default with respect to such Series which may
have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
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(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 5.9 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the conditions of this Section
6.1.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or any assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection
and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
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(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of any Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Securities of all Series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default (other than any Event of Default under
Section 5.1(a) or 5.1(b)) unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of such Default
or Event of Default is received by the Trustee at the Corporate Trust
Office of the Trustee;
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(j) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
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SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons. The Trustee represents that it is duly authorized to
execute and deliver this Indenture and perform its obligations hereunder. The
Trustee shall not be accountable for the use or application by the Company of
any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee, any Paying Agent, Security registrar, or any agent of the Company
or the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and, subject to Sections 6.8 and 6.13, if
operative, may otherwise deal with the Company and receive, collect, hold and
retain collections from the Company with the same rights it would have if it
were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing between the Company and the Trustee in Dollars (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request in Dollars for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based on the income of the
Trustee), incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim (whether asserted by the
Company, a Holder or any other Person) of liability in the premises. The
obligations of the Company under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the
43
benefit of the Holders of particular Securities or the Holders of particular
Coupons, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(d), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate complying with Section 11.5 delivered to the Trustee, and
such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it or under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Disqualification of Trustee; Conflicting Interests. If
the Trustee for the Securities of any Series has or shall acquire any
conflicting interest, as defined in the Trust Indenture Act, it shall, within 90
days after ascertaining that it has such conflicting interest, and if the
default (as defined in the Trust Indenture Act) to which such conflicting
interest relates has not been cured or waived or otherwise eliminated before the
end of such 90-day period, the Trustee shall, either eliminate such conflicting
interest or resign in the manner and with the effect specified in the Trust
Indenture Act and this Indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee
for each Series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $40,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
state or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all Series of Securities by
giving written notice of resignation to the Company and by mailing notice
thereof to the Holders (subject to the provisions of the last paragraph of
Section 6.11) in the manner and to the extent provided in Section 11.4. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the applicable Series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy
44
to the successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any Series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor trustee, or any Securityholder who has been a
bona fide Holder of a Security or Securities of the applicable Series for at
least six months may, subject to the provisions of Section 5.12, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any Series of Securities after written
request therefor by the Company or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such Series for at
least six months unless the Trustee's duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust Indenture
Act; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Company or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any Series of the Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to the
applicable Series of Securities and appoint a successor trustee for such Series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Company, one copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee, or, subject to the provisions
of Section 5.12, any Securityholder who has been a bona fide Holder of a
Security or Securities of such Series for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such Series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each Series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such Series and appoint a successor
trustee with respect to the Securities of such Series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Company the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
If no successor Trustee shall have been appointed with respect to such
series within 30 days after the mailing of such notice of removal, the Trustee
being removed may petition, at the
45
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(d) Any resignation or removal of the Trustee with respect to any
Series and any appointment of a successor trustee with respect to such Series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in
Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Company and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable Series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such Series of its predecessor hereunder, with like effect as if
originally named as trustee for such Series hereunder; but, nevertheless, on the
written request of the Company or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) Series, the Company, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable Series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any Series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any Series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Company shall give notice in the manner and to the extent
provided in Section 11.4 to the Holders of Securities of any Series for which
such successor trustee is acting as trustee at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by
Section 6.10. If the Company fails to
46
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any Series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any Series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
Trustee hereunder or in the name of the successor Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities of such Series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
Series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Company. If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
Series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
47
(b) The ownership of Registered Securities shall be proved by the
Security register.
(c) The amount of Unregistered Securities held by any Person
executing any instrument or writing as a Securityholder, the numbers of such
Unregistered Securities, and the date of his holding the same may be proved by
the production of such Securities or by a certificate executed by any trust
company, bank, broker or member of a national securities exchange (wherever
situated), as depositary, if such certificate is in form satisfactory to the
Trustee, showing that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Unregistered Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person executing such instrument or writing as a Securityholder, if such
certificate or affidavit is in form satisfactory to the Trustee. The Trustee and
the Company may assume that such ownership of any Unregistered Security
continues until (i) another certificate or affidavit bearing a later date issued
in respect of the same Unregistered Security is produced, or (ii) such
Unregistered Security is produced by some other person, or (iii) such
Unregistered Security is surrendered in exchange for a Registered Security, or
(iv) such Unregistered Security has been cancelled in accordance with
Section 2.10.
SECTION 7.2 Proof of Execution of Instruments. Subject to
Sections 6.1 and 6.2, the execution of any instrument by a Securityholder or his
agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
Series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Security.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture or whether a quorum is present at a
meeting of Holders of Securities, Securities which are owned by the Company or
any other obligor on the Securities with respect to which such determination is
being made or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities with respect to which such determination is being made shall
be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, and for
purposes of determining the presence of a quorum, only Securities which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to so act with respect to such Securities and that
the
48
pledgee is not the Company or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the corporate trust office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all Series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of
all the Securities affected by such action.
SECTION 7.6 Record Date for Determination of Holders Entitled to
Vote. The Company may, in the circumstances permitted by the Trust Indenture
Act, set a record date for the purpose of determining the Securityholders
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 Securityholders. If not set by the Company
prior to the first solicitation of a Securityholder 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 4.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly appointed proxies) shall be entitled to give or take, or vote on, the
relevant action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee for the Securities of any and all Series may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act
49
of 1939 as in force at the date of the execution thereof), in form satisfactory
to such Trustee, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more Series any
property or assets;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Nine;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities of any or all Series and, if such additional
covenants are to be for the benefit of less than all the Series of
Securities stating that such covenants are being added solely for the
benefit of such Series, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth (and if such additional Events of Default
are to be for the benefit of less than all Series of the Securities
stating that such Events of Default are being added solely for the
benefit of such Series); provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Securities of such Series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable and which shall not materially and adversely affect the
interests of the Holders of the Securities or the Holders of any
Coupons;
(e) to establish the form or terms of Securities of any
Series as permitted by Sections 2.1 and 2.3; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than the one Trustee,
pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may
50
be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (treated as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, that no
such supplemental indenture shall (a) extend the final maturity of any Security,
or reduce the principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or impair or affect the right of any
Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any Series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses as
they shall appear on the Securities register of the Company, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
51
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
For the purposes of this Section 8.2 only, if the Securities of any
Series are issuable upon the exercise of warrants, each holder of an unexercised
and unexpired warrant with respect to such series shall be deemed to be a Holder
of Outstanding Securities of such Series in the amount issuable upon the
exercise of such warrant. For such purposes, the ownership of any such warrant
shall be determined by the Company in a manner consistent with customary
commercial practices. The Trustee for such series shall receive and shall be
entitled to conclusively rely on an Officers' Certificate as to the principal
amount of Securities of such Series in respect of which consents shall have been
executed by holders of such warrants.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each Series and Holders of Coupons affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series (including any Coupons appertaining
thereto) authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear, upon the
direction of the Company, a notation in form satisfactory to the Trustee for the
Securities of such Series as to any matter provided for by such supplemental
indenture or as to any action taken at any such meeting. If the Company or the
Trustee shall so determine, new Securities of any Series and any Coupons
appertaining thereto so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by
the Trustee and delivered in exchange for the Securities of such Series then
Outstanding and any Coupons appertaining thereto then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms. Subject
to the provisions of Section 9.2, nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of the Company with
or into any other corporation or corporations (whether or not affiliated with
the Company), or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall
52
prevent any sale, conveyance or lease of property of the Company to any other
corporation (whether or not affiliated with the Company) authorized to acquire
and operate the same; provided, however, and the Company hereby covenants and
agrees, that upon any such consolidation or merger or any sale, conveyance or
lease, in a single transaction or a series of transactions, of ninety percent
(90%) or more of the property of the Company (measured using the book value of
such property as of the date of the most recent audited financial statements of
the Company), other than a merger in which the Company is the continuing
corporation, the due and punctual payment of the principal of and interest on
all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or by
the corporation which shall have acquired or leased such property.
SECTION 9.2 Securities to be Secured in Certain Events. If, upon any
consolidation, merger, sale, conveyance or lease referred to in Section 9.1, or
upon any consolidation or merger of any Restricted Subsidiary, or upon any sale,
conveyance or lease, in a single transaction or a series of transactions, of
ninety percent (90%) or more of the property (measured using the book value of
such property as of the date of the most recent audited financial statements of
the Company) of any Restricted Subsidiary to any other corporation, any
Principal Property of the Company or of any Restricted Subsidiary or any shares
of capital stock or indebtedness of any Restricted Subsidiary which is owned
immediately after such consolidation, merger, sale, conveyance or lease by the
Company or a Restricted Subsidiary or a successor to the Company pursuant to
Sections 9.1 and 9.3 would thereupon become subject to any mortgage, security
interest, pledge, lien or encumbrance (other than a mortgage, security interest,
pledge, lien or encumbrance in favor of the Company, a Restricted Subsidiary or
any such successor), the Company, prior to or concurrently with such
consolidation, merger, sale, conveyance or lease, will effectively provide that
the Securities shall be secured (equally and ratably with, if the Company shall
determine, any other indebtedness of or guaranteed by the Company or a
Restricted Subsidiary ranking equally with the Securities) by a direct lien on
such Principal Property, shares of stock or indebtedness, prior to all liens
other than any theretofore existing thereon, so long as such Principal Property,
shares of stock or indebtedness shall be subject to such mortgage, security
interest, pledge, lien or encumbrance.
SECTION 9.3 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, where the Indenture shall be assumed
by a successor corporation, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Company prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities and Coupons, if any, appertaining thereto, which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to
53
be signed and delivered to the Trustee for that purpose. All of the Securities
and Coupons, if any, appertaining thereto, so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities and
Coupons, if any, appertaining thereto, theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities and
Coupons, if any, appertaining thereto, had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons, if any, appertaining thereto, thereafter to be issued as
may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Company or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 9.4 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at any
time (a) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities of any Series and Coupons, if any, appertaining
thereto Outstanding hereunder (other than Securities and Coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Company shall have delivered to the Trustee for cancellation all Securities of
any Series and Coupons theretofore authenticated (other than any Securities of
such Series and Coupons which have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.9) or (c)(i) all the
Securities of such Series and Coupons not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Company shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in the
Currency required (other than moneys repaid by the Trustee or any Paying Agent
to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash sufficient, in the opinion of a firm of
independent certified public accountants, to pay at maturity or upon redemption
all Securities of such Series and Coupons (other than any Securities of such
Series and Coupons which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.9) not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or to become due to such date of maturity as the case may be, and if, in any
such case, the Company shall also pay or
54
cause to be paid all other sums payable hereunder by the Company with respect to
Securities of such Series and Coupons, then this Indenture shall cease to be of
further effect with respect to Securities of such Series and Coupons (except as
to (i) rights of registration of transfer and exchange, and the Company's right
of optional redemption, (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Securities and Coupons, (iii) rights of Holders to receive payments of
principal thereof and interest thereon upon the original stated due dates
therefor (but not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations
and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such Series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and,
subject to Section 10.5, the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to such Series; provided, that the
rights of Holders of the Securities and Holders of Coupons to receive amounts in
respect of principal of and interest on the Securities and Coupons held by them
shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture, the Securities of such Series and Coupons.
(b) In addition to the provisions of Section 10.1(a), the Company may
terminate its obligations under the Securities of any Series and this Indenture
with respect to such Series, except those obligations referred to in the
penultimate paragraph of this Section 10.1, if the Company has irrevocably
deposited or caused to be deposited with the Trustee at its Corporate Trust
Office or such other office as the Trustee may designate, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the Securityholders of such
Series for that purpose, (i) cash in the Currency required or, (ii) Government
Obligations maturing as to principal and interest in such amounts and at such
times as are sufficient, in the opinion of a firm of independent certified
public accountants, without consideration of any reinvestment of such principal
or interest, to pay the principal of and interest on the outstanding Securities
of such Series and Coupons to maturity or redemption, as the case may be,
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to the payment of said
principal of and interest on the Outstanding Securities and Coupons of such
Series.
Such irrevocable trust agreement shall include, among other things,
provision for (1) payment of the principal of and interest on the Securities of
such Series and Coupons when due (by redemption, sinking fund payments or
otherwise), (2) the payment of the expenses of the Trustee incurred or to be
incurred in connection with carrying out such trust provisions, (3) rights of
registration, transfer, substitution and exchange of Securities of such Series
and Coupons in accordance with the terms stated in this Indenture and (4)
continuation of the rights and obligations and immunities of the Trustee as
against the Securityholders of such Series as stated in this Indenture.
Notwithstanding the first paragraph of this Section 10.1(b), the
Company's obligations in Sections 2.8, 2.9, 3.1, 3.2, 3.8, 5.1, 6.6, 6.10, 10.4
and 10.5 shall survive until the Securities of
55
such Series and Coupons, if any, are no longer Outstanding; provided, however,
that the Company's obligations in Section 5.1 shall survive only with respect to
Events of Default as defined in Sections 5.1(a), 5.1(b) and 5.1(c). Thereafter,
the Company's obligations in Sections 6.6, 10.4 and 10.5 shall survive.
After any such irrevocable deposit, accompanied by an Officers'
Certificate which shall state that the provisions of the first two paragraphs of
this Section 10.1(b) have been complied with, and upon delivery by the Company
to the Trustee of (i) an Opinion of Counsel to the effect that either (a) as a
result of such deposit and the related exercise of the Company's option under
this Section 10.1(b) registration will not be required under the Investment
Company Act of 1940, as amended, by the Company, the trust funds representing
such deposit or the Trustee or (b) all necessary registrations under such
Investment Company Act have been effected and (ii) an Opinion of Counsel to the
effect that Securityholders of such Series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and discharge
and will be subject to Federal income tax on the same amount and in the same
manner and at the same time as would have been the case if such deposit and
discharge had not occurred, then the Company shall be discharged of its
obligations under the Securities of such Series and this Indenture with respect
to such Series except for those surviving obligations specified above, and the
Trustee upon request shall acknowledge in writing such discharge. Prior to the
delivery of such acknowledgment, the Company shall deliver to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and discharge contemplated
by this provision have been complied with, and the Trustee may also require that
the Opinion of Counsel referred to in clause (i) of this paragraph shall also
state that such deposit does not violate applicable law.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series and any Coupons appertaining thereto for the payment or redemption
of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series or Coupons, all moneys then held by any Paying Agent under the
provisions of this Indenture with respect to such Series of Securities or
Coupons shall, upon written demand of the Company, be repaid to it or paid to
the Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent for
the payment of the principal of or interest on any Security of any Series or
Coupons and not applied but remaining unclaimed for two years after the date
upon which such principal or interest shall have become due and payable, shall,
upon the written request of the Company and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be
56
repaid to the Company by the Trustee for such Series or such Paying Agent, and
the Holder of the Security of such Series or Holders of Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Company for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any Paying Agent with respect to such moneys shall
thereupon cease.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee is
unable to apply any funds or Government Obligations in accordance with Section
10.1 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application or by reason of the Trustee's inability to convert
any such funds or Government Obligations into the Currency required to be paid
with respect to the Securities of such Series, the Company's obligations under
this Indenture and the Securities of any Series for which such application is
prohibited shall be revived and reinstated as if no deposit had occurred
pursuant to Section 10.1 until such time as the Trustee is permitted to apply
all such funds or Government Obligations in accordance with Section 10.1 or is
able to convert all such funds or Government Obligations; provided, however,
that if the Company has made any payment of interest on or principal of any of
such Securities or Coupons because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Securityholders of such
Securities to receive such payment from the funds or Government Obligations held
by the Trustee.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security
or Coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and Coupons, if any, by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or Coupons,
expressed or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Securities and Coupons, if any, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities and Coupons.
57
SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee, by the Holders of
Securities, or by the Holders of Coupons to or on the Company may be given or
served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Company is
filed by the Company with the Trustee) to NCR Corporation, 1700 South Patterson
Blvd., Dayton, Ohio 45479 Attention: General Counsel/Notices or sent by
telecopier to NCR Corporation, Facsimile Number 937.445.7214, Attention: General
Counsel/Notices. Any notice, direction, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, (1)
if any of the Securities affected by such event are Registered Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Registered
Holders as their names and addresses appear in the Security register within the
time prescribed and (2) if any of the Securities affected by such event are
Unregistered Securities or Coupon Securities, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if published once in a
newspaper of general circulation in New York, New York and London, England
within the time prescribed. 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 any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any Series or
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of
interest, premium, if any, or principal need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such required provision shall control.
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SECTION 11.8 New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
without regard to conflicts of law principles thereof, except to the extent that
the application of the laws of any other jurisdiction would be required thereby.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11 Determination of Principal Amount. In determining whether
the Holders of the requisite principal amount of outstanding Securities of any
Series have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, whether a quorum is present at a meeting of Holders of
Securities or whether sufficient funds are available for redemption or for any
other purpose, the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1 and the principal amount of any Securities denominated
in a Foreign Currency or Euro that shall be deemed to be outstanding for such
purposes shall be determined by converting the Foreign Currency or the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate as of
the date of such determination.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any Series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series to be redeemed as a whole
or in part at the option of the Company shall be given by giving notice of such
redemption as provided in Section 11.4, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of Securities of
such Series. Failure to give notice, or any defect in the notice to the Holder
of any Security of a Series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Security of such Series.
The notice of redemption to each such Holder shall identify the
Securities to be redeemed (including "CUSIP" or "ISIN" numbers), specify the
date fixed for redemption, the redemption price, the Place or Places of Payment,
that payment will be made upon presentation and surrender of such Securities,
and that, unless otherwise specified in such notice, Coupon
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Securities, if any, surrendered for payment must be accompanied by all Coupons
maturing subsequent to the redemption date, failing which the amount of any such
missing Coupon or Coupons will be deducted from the sum due for payment, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue and that,
if less than all of the Outstanding Securities of a Series are to be redeemed,
the identification and principal amount of the Securities to be redeemed. If
less than all of the Securities of any Series are to be redeemed, the notice of
redemption shall specify the numbers of the Securities of such Series to be
redeemed, and, if only Unregistered Securities of any Series are to be redeemed,
and if such Unregistered Securities may be exchanged for Registered Securities,
the last date on which exchanges of Unregistered Securities for Registered
Securities not subject to redemption may be made. In case any Security of a
Series is to be redeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security and any
Coupons appertaining thereto, a new Security or Securities of such Series in
principal amount equal to the unredeemed portion thereof with appropriate
Coupons will be issued.
The notice of redemption of Securities of any Series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The
Company shall give the Trustee at least 45 days prior written notice of any
redemption hereunder.
Not later than 10:00 a.m., New York City time, on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will have on deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 3.4) an amount of money in the Currency in
which the Securities of such Series and any Coupons appertaining thereto are
payable (except as otherwise specified pursuant to Section 2.3 and except as
provided in Sections 2.12(b), (e) and (f) of this Indenture) sufficient to
redeem on the redemption date all the Securities of such Series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If less than all the Outstanding Securities of
a Series are to be redeemed, the Company will deliver to the Trustee at least 60
days prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such Series or any multiple thereof. The Trustee shall promptly
notify the Company in writing of the Securities of such Series selected for
redemption and, in the case of any Securities of such Series 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 of any Series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
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SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest on Registered Securities becoming due on the date fixed for
redemption shall be payable to the Holders of such Securities registered as such
on the relevant record date subject to the terms and provisions of Section 2.4.
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the date fixed for
redemption, such Security may be paid after deducting from the redemption price
an amount equal to the face amount of all such missing Coupons or the surrender
of such missing Coupon or Coupons may be waived by the Company and the Trustee,
if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any missing Coupon in respect
of which a deduction shall have been made from the redemption price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that,
unless otherwise provided pursuant to Section 2.3, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside of the United States.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by the Security.
Upon presentation of any Security redeemed in part only and the Coupons
appertaining thereto, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities and the Coupons
appertaining thereto, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in
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such written statement directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. 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". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series (together with the
unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any Series of Securities, the Company will deliver to the Trustee a
written statement (which need not contain the statements required by Section
11.5) signed by an authorized officer of the Company (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash in the
Currency in which the Securities of such Series and Coupons, if any,
appertaining thereto are payable (except as otherwise specified pursuant to
Section 2.3 for the Securities of such Series and except as provided in Section
2.12(b), (e) and (f) hereof), and the portion to be satisfied by credit of
Securities of such Series, (b) stating that none of the Securities of such
Series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such Series have
occurred (which have not been waived or cured) and are continuing, (d) stating
whether or not the Company intends to exercise its right to make an optional
sinking fund payment with respect to such Series and, if so, specifying the
amount of such optional sinking fund payment which the Company intends to pay on
or before the next succeeding sinking fund payment date and (e) specifying such
sinking fund payment date. Any Securities of such Series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement (or reasonably promptly thereafter if
acceptable to the Trustee). Such written statement shall be irrevocable and upon
its receipt by the Trustee the Company shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or before
the next succeeding sinking fund payment date. Failure of the Company, on or
before any such sixtieth day, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company (i)
that the mandatory sinking fund payment for such Series due on the next
succeeding sinking fund
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payment date shall be paid entirely in cash (in the Currency) without the option
to deliver or credit Securities of such Series in respect thereof and (ii) that
the Company will make no optional sinking fund payment with respect to such
Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash (in the Currency described above) on the next succeeding
sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $100,000, or the equivalent in the Currency
in which the Securities of such Series are payable (or a lesser sum if the
Company shall so request) with respect to the Securities of any particular
Series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such Series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $100,000, or the equivalent in the Currency
in which the Securities of such Series are payable, or less and the Company
makes no such request then it shall be carried over until a sum in excess of
$100,000, or the equivalent in the Currency in which the Securities of such
Series are payable, is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such Series to absorb said cash, as
nearly as may be possible, and shall (if requested in writing by the Company)
inform the Company of the serial numbers of the Securities of such Series (or
portions thereof) so selected. Securities of any Series which are identified by
registration and certificate number in an Officers' Certificate at least 60 days
prior to the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Company or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company shall be excluded from Securities of such Series eligible for selection
for redemption. The Trustee, in the name and at the expense of the Company (or
the Company, if it shall so notify the Trustee in writing) shall cause notice of
redemption of the Securities of such Series to be given in substantially the
manner provided in Section 12.2 (and with the effect provided in Section 12.3)
for the redemption of Securities of such Series in part at the option of the
Company. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such Series shall be added to the next cash
sinking fund payment for such Series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
Series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such Series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such Series at
maturity.
The Trustee shall not convert any Currency in which the Securities of
such Series are payable for the purposes of such sinking fund application unless
specifically requested to do so by the Company, and any such conversion agreed
to by the Trustee in response to such request shall be for the account and at
the expense of the Company and shall not affect the Company's obligation to pay
the Holders in the Currency to which such Holder may be entitled.
Not later than 10:00 a.m., New York City time, on the sinking fund
payment date, the Company shall have paid to the Trustee in cash (in the
Currency described in the third paragraph of this Section 12.5) or shall
otherwise provide for the payment of all interest accrued to the date
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fixed for redemption on Securities to be redeemed on the next following sinking
fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of any
Series which are repayable at the option of the Holders thereof before their
stated maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their stated
maturity, for purposes of Section 10.1, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same
to the Trustee with a directive that such Securities be cancelled.
ARTICLE THIRTEEN
HOLDERS' MEETINGS
SECTION 13.1 Purposes of Meetings. A meeting of Holders of Securities
of any or all Series may be called at any time and from time to time pursuant to
the provisions of this Article Thirteen for any of the following purposes:
(a) to give any notice to the Company or to the Trustee for
the Securities of such Series, or to give any directions to the Trustee
for such Series, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be
taken by Holders pursuant to any of the provisions of Article Five;
(b) to remove the Trustee for such Series and nominate a
successor Trustee pursuant to the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 8.2; and
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(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all Series, as the case may be,
under any provision of this Indenture or under applicable law.
SECTION 13.2 Call of Meetings by Trustee. The Trustee for the
Securities of any Series may at any time call a meeting of Holders of Securities
of such Series to take any action specified in Section 13.1, to be held at such
time and at such place in New York, New York, or such other Place of Payment as
the Trustee for such Series shall determine. Notice of every meeting of the
Holders of Securities of any Series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given to Holders of Securities of such Series in the manner
and to the extent provided in Section 11.4. Such notice shall be given not less
than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 13.3 Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a request by any two executive officers of the
Company, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any or all Series, as the case may be, shall have
requested the Trustee for such Series to call a meeting of Holders of Securities
of any or all Series, as the case may be, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee for such Series shall not have given the notice of such meeting within
20 days after receipt of such request, then the Company or such Holders may
determine the time and the place in the New York, New York or such other Place
of Payment for such meeting and may call such meeting to take any action
authorized in Section 13.1, by giving notice thereof as provided in Section
13.2.
SECTION 13.4 Qualifications for Voting. To be entitled to vote at any
meeting of Holders, a person shall be (a) a Holder of one or more Securities
with respect to which such meeting is being held or (b) a person appointed by an
instrument in writing as proxy by such Holder. The only persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee for the Securities of the Series with respect to
which such meeting is being held and its counsel and any representatives of the
Company and its counsel.
SECTION 13.5 Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee for the Securities of any Series may make such reasonable
regulations as it may deem advisable for any meeting of Holders of the
Securities of such Series, in regard to proof of the holding of Securities of
such Series and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of the Securities of such Series as provided in Section
13.3, in which case the Company or the Holders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A
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permanent chairman and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to Section 7.4, at any meeting each Holder of Securities with
respect to which such meeting is being held or proxy therefor shall be entitled
to one vote for each $1,000 (or the equivalent in the Currency in which such
Securities are denominated, as determined pursuant to Section 11.11) principal
amount (in the case of the Original Issue Discount Securities, such principal
amount to be determined as provided in Section 11.11) of Securities held or
represented by him. However, no vote shall be cast or counted at any meeting in
respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of the Securities of such Series held
by him or instruments in writing aforesaid duly designating him as the person to
vote on behalf of other Holders of such Series. At any meeting of Holders, the
presence of persons holding or representing Securities with respect to which
such meeting is being held in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall constitute a quorum, but, if less than a quorum is present, the persons
holding or representing a majority in aggregate principal amount of such
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present. Any
meeting of Holders of Securities with respect to which a meeting was duly called
pursuant to the provisions of Section 13.2 or Section 13.3 may be adjourned from
time to time by a majority of such Holders present, whether or not constituting
a quorum, and the meeting may be held as so adjourned without further notice.
SECTION 13.6 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to such record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given in the manner and to the extent provided in
Section 11.4. The record shall show the serial numbers of the Securities voting
in favor of or against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 13.7 No Delay of Rights by Meeting. Nothing in this Article
Thirteen shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay
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in the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Holders under any of the provisions of this Indenture or of the
Securities of any Series.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
NCR CORPORATION
By: /s/ Earl C. Shanks
Name: Earl C. Shanks
Tile: Senior Vice President and Chief Financial
Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Joseph A. Lloret
Name: Joseph A. Lloret
Title: Assistant Treasurer