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EXHIBIT 4.10
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CITIGROUP INC.
and
BANK ONE TRUST COMPANY, N.A.
Trustee
_________________
Indenture
Dated as of ________, 2001
_________________
Providing for the Issuance of Subordinated Debt Securities
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This Cross Reference Sheet, showing the location in the Indenture of the
provisions inserted pursuant to Section 310-318(a), inclusive, of the Trust
Indenture Act of 1939, as amended, is not to be considered a part of the
Indenture.
TRUST INDENTURE ACT CROSS-REFERENCE SHEET
Sections of Trust Indenture Act Sections of Indenture
310(a)(1) 10.05
310(a)(2) 10.05
310(a)(3) Not applicable
310(a)(4) Not applicable
310(a)(5) 10.05
310(b) 10.06
310(c) Not applicable
311 10.09
312 9.03
313 9.01
314(a) 5.06 and 9.02
314(b) Not applicable
314(c) 15.03
314(d) Not applicable
314(e) 15.03
315(a) 10.02
315(b) 10.03
315(c) 10.02
315(d) 10.02
315(e) 6.08
316(a) 6.06 and 7.03
316(b) 6.07
316(c) 13.02
317(a) 6.03 and 6.04
317(b) 5.03
318(a) 15.05
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TABLE OF CONTENTS
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PARTIES.......................................................................................................... 1
RECITALS......................................................................................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. .................................................................................... 1
Affiliate...................................................................................... 1
Authorized Newspaper........................................................................... 2
Bearer Security................................................................................ 2
Board Resolution............................................................................... 2
Business day:.................................................................................. 2
Clearstream Banking............................................................................ 2
Company........................................................................................ 2
Coupon......................................................................................... 2
Covenant Defeasance............................................................................ 2
Default........................................................................................ 2
Defeasance..................................................................................... 2
Depositary..................................................................................... 2
Euroclear...................................................................................... 2
Event of Default............................................................................... 2
Global Security................................................................................ 3
Indebtedness................................................................................... 3
Indenture...................................................................................... 3
Interest....................................................................................... 3
Interest Payment Date.......................................................................... 3
Junior Subordinated Debt....................................................................... 3
Junior Subordinated Debt Indenture............................................................. 3
Mandatory Sinking Fund Payment................................................................. 3
Maturity....................................................................................... 3
Officers' Certificate.......................................................................... 3
Opinion of Counsel............................................................................. 4
Optional Sinking Fund Payment.................................................................. 4
Original Issue Discount Security............................................................... 4
Outstanding.................................................................................... 4
Person......................................................................................... 4
Possessions.................................................................................... 4
Principal Office of the Trustee................................................................ 4
Record Date.................................................................................... 4
Redemption Date................................................................................ 5
Redemption Price............................................................................... 5
Registered Security............................................................................ 5
Responsible Officers........................................................................... 5
Security....................................................................................... 5
Securityholder, Holder of Securities; Holder................................................... 5
Senior Indebtedness............................................................................ 5
Stated Maturity................................................................................ 6
Subsidiary..................................................................................... 6
Trustee........................................................................................ 6
Trust Indenture Act of 1939.................................................................... 6
Trust Preferred Securities Guarantees.......................................................... 6
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U.S. Government Obligations.................................................................... 6
SECTION 1.02 Notice to Holders of Securities; Waiver........................................................ 6
SECTION 1.03 Language of Notices, Etc....................................................................... 7
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms Generally; Record Dates; Place of Payment; Denominations.................................... 7
SECTION 2.02. Amount; Terms of Securities....................................................................... 8
SECTION 2.03. Certificate of Authentication Validates Securities................................................ 10
SECTION 2.04. Form of Certificate of Authentication............................................................. 10
SECTION 2.05 Maintenance of Register at New York Office; Transfer of Securities;
Exchange of Securities; Persons Deemed Owners..................................................... 11
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities................................................... 13
SECTION 2.07. Rights Regarding Exchanged or Substituted Securities.............................................. 14
SECTION 2.08 Temporary Securities.............................................................................. 14
SECTION 2.09. Transfer and Exchange of Global Securities........................................................ 16
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating............................................................... 16
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Rights of Redemption.............................................................................. 17
SECTION 4.02. Notices of Redemption............................................................................. 18
SECTION 4.03. Applicability of Sinking Fund..................................................................... 19
SECTION 4.04. Mandatory Sinking Fund Obligation. .............................................................. 19
SECTION 4.05. Optional Redemption At Sinking Fund Redemption Fund Price. ...................................... 19
SECTION 4.06. Application of Sinking Fund Payments. ........................................................... 20
ARTICLE FIVE
COVENANTS OF THE COMPANY
SECTION 5.01. Payment of Principal, Premium and Interest........................................................ 20
SECTION 5.02. Maintenance of Office or Agency................................................................... 21
SECTION 5.03. Money for Security Payments to Be Held in Trust................................................... 21
SECTION 5.04. Statement as to Compliance........................................................................ 22
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of Default................................................................................. 23
SECTION 6.02. Acceleration of Maturity.......................................................................... 23
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................... 24
SECTION 6.04. Trustee to File Claims As Attorney-In-Fact........................................................ 24
SECTION 6.05. Application of Money Collected.................................................................... 25
SECTION 6.06. Control by Holders; Waiver of Past Default........................................................ 25
SECTION 6.07. Limitation on Suits; Default...................................................................... 26
SECTION 6.08. Costs and Attorneys' Fees in Legal Proceedings.................................................... 27
SECTION 6.09. Remedies Cumulative............................................................................... 27
SECTION 6.10. Waiver of Stay or Extension Laws.................................................................. 27
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Acts of Holders................................................................................... 27
SECTION 7.02. Proof of Execution of Instrument and Holding of Securities........................................ 28
SECTION 7.03. Securities Owned by Company or Other Obligor...................................................... 28
SECTION 7.04. Revocation by Holders of Consents to Action....................................................... 29
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.............................................................................. 29
SECTION 8.02. Call of Meetings by Trustee....................................................................... 29
SECTION 8.03. Call of Meetings by Company or Holders............................................................ 29
SECTION 8.04. Qualifications for Voting......................................................................... 29
SECTION 8.05. Regulations for Meeting........................................................................... 30
SECTION 8.06. Voting............................................................................................ 30
SECTION 8.07. No Delay of Rights by Meeting..................................................................... 30
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS LISTS
SECTION 9.01. Reports by Trustee................................................................................ 31
SECTION 9.02. Reports by Company................................................................................. 31
SECTION 9.03. Securityholders List.............................................................................. 32
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Acceptance of Trusts Upon Specified Conditions................................................... 33
SECTION 10.02. Duties of Trustee in Case of Default............................................................. 34
SECTION 10.03. Notice of Default................................................................................ 35
SECTION 10.04. Resignation of Trustee........................................................................... 35
SECTION 10.05. Qualifications of Trustee........................................................................ 36
SECTION 10.06. Disqualification of Trustee...................................................................... 36
SECTION 10.07. Appointment of Trustee........................................................................... 36
SECTION 10.08. Merger, Conversion or Consolidation of Trustee; Successor Trustee................................ 37
SECTION 10.09. Trustee as Creditor of Company................................................................... 37
SECTION 10.10. Trustee May Rely on Officer's Certificate........................................................ 38
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 11.01. Satisfaction and Discharge of Indenture.......................................................... 38
SECTION 11.02. Defeasance and Discharge......................................................................... 39
SECTION 11.03. Covenant Defeasance.............................................................................. 39
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance.................................................. 40
SECTION 11.05. Application of Trust Money....................................................................... 40
SECTION 11.06. Indemnity for U.S. Government Obligations........................................................ 40
SECTION 11.07. Deposits of Non-U.S. Currencies.................................................................. 41
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Liability Solely Corporate....................................................................... 41
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Supplemental Indentures Without Consent of Holders...............................................41
SECTION 13.02. Supplemental Indentures With Consent of Holders..................................................42
SECTION 13.03. Execution of Supplemental Indenture..............................................................43
SECTION 13.04. Effect of Supplemental Indenture.................................................................44
SECTION 13.05. Reference in Securities to Supplemental Indenture................................................44
SECTION 13.06. Conformity With Trust Indenture Act..............................................................44
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Securities Subordinate to Senior Indebtedness....................................................44
SECTION 14.02. Reliance On Certificate of Liquidating Agent; Further Evidence
of Ownership of Senior Indebtedness...........................................................46
SECTION 14.03. Payment Permitted If No Default..................................................................46
SECTION 14.04. Trustee Not Charged With Knowledge of Certain Facts..............................................46
SECTION 14.05. Trustee to Effectuate Subordination..............................................................47
SECTION 14.06. Trustee's Rights Regarding Senior Indebtedness...................................................47
SECTION 14.07. Articles Applicable to Paying Agent..............................................................47
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Consolidation, Merger, Sale or Lease.............................................................47
SECTION 15.02. Rights Under Indenture Limited to Parties thereto and Holders....................................48
SECTION 15.03. Evidence of Compliance With Conditions Precedent.................................................48
SECTION 15.04. Cancellation of Securities.......................................................................48
SECTION 15.05. Conflict with Trust Indenture Act................................................................49
SECTION 15.06. Acts of Board Committees.........................................................................49
SECTION 15.07. Notices..........................................................................................49
SECTION 15.08. Payments Due on Non-Business Days................................................................49
SECTION 15.09. Counterparts.....................................................................................49
SECTION 15.10. Governing Law....................................................................................49
SECTION 15.11. Separability Clause..............................................................................49
SECTION 15.12. Legend.............................................................................................
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INDENTURE dated as of _______, 2001, between CITIGROUP INC., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company") and BANK ONE TRUST COMPANY, N.A., a national
banking association, as trustee (hereinafter called the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company is authorized and empowered to borrow money for
its corporate purposes and to issue its bonds, debentures, notes and other
obligations for money so borrowed;
WHEREAS, the Company has duly authorized the issue, in one or more
series as in this Indenture provided, from time to time of its debt securities
(hereinafter called the "Securities") and, to provide the general terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture;
WHEREAS, the Trustee has power to enter into this Indenture and to
accept and execute the trusts herein created;
WHEREAS, the Company represents that all acts and things necessary to
make the Securities, when executed by the Company and authenticated and
delivered by the Trustee as in this Indenture provided, and issued, the valid,
binding and legal obligations of the Company, will, at the time of such
execution, authentication and delivery, have been done and performed, that all
acts and things necessary to constitute these presents a valid indenture and
agreement according to its terms, have been done and performed, that the
execution of this Indenture has in all respects been duly authorized and that
the issue hereunder of the Securities will, at the time of the issue thereof,
have in all respects been duly authorized, and the Company, in the exercise of
each and every legal right and power in it vested, executes this Indenture and
proposes to make, execute, issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and
purchase of the Securities by the Holders thereof the Company covenants and
agrees with the Trustee, for the equal benefit of all the Holders from time to
time of the Securities, without preference, priority or distinction of any
thereof over any other thereof by reason of priority in time of issuance or
negotiation, or otherwise, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Indenture
or the context otherwise requires, all terms used herein shall have the meanings
assigned to them in the Trust Indenture Act of 1939. Unless the context
otherwise requires, the terms defined in this Section 1.01 shall for all
purposes of this Indenture and of any indenture supplemental hereto have the
meanings hereinafter set forth, the following definitions to be equally
applicable to both the singular and the plural forms of any of the terms herein
defined:
Affiliate:
The term "Affiliate" means, with respect to any person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For purposes of this
definition, "control" when used with respect to any specified person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
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Authorized Newspaper:
The term "Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language, customarily
published on each business day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place.
Bearer Security:
The term "Bearer Security" means any Security in the form established
pursuant to Section 2.01 which is payable to the bearer, including, without
limitation, unless the context otherwise indicates, a Security in global bearer
form.
Board Resolution:
The term "Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or by the Funding Committee of the Board
of Directors or any other committee of the Board of Directors or committee of
officers or other representatives of the Company, to the extent that any such
other committee or committees have been authorized by the Board of Directors to
establish or approve the matters contemplated by Section 2.02 or 4.02 hereof)
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
Business day:
The term "business day," when used with respect to any place of payment
or any other particular location referred to in this Indenture or in the
Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that place of payment or other
location are authorized or obligated by law to close.
Clearstream Banking:
The term "Clearstream Banking" shall mean Clearstream Banking, societe
anonyme, and its successors.
Company:
The term "Company" shall mean Citigroup Inc. and, subject to the
provisions of Section 15.01, shall also include its successors and assigns.
Coupon:
The term "Coupon" means any interest coupon appertaining to a Bearer
Security.
Covenant Defeasance:
The term "Covenant Defeasance" shall have the meaning specified in
Section 11.03.
Default:
The term "Default" shall have the meaning specified in Section 6.07.
Defeasance:
The term "Defeasance" shall have the meaning specified in Section
11.02.
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable U.S. or foreign statute or regulation
that is designated to act as Depositary for such Securities as contemplated by
Section 2.02.
Euroclear:
The term "Euroclear" shall mean Euroclear Bank S.A./N.V. as operator of
the Euroclear System.
Event of Default:
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The term "Event of Default" shall have the meaning specified in Section
6.01.
Global Security:
The term "Global Security" means a Security issued to evidence all or a
part of any series of Securities and designated as a Global Security.
Indebtedness:
The term "Indebtedness" shall mean any and all obligations of a
corporation for money borrowed which in accordance with generally accepted
accounting principles would be reflected on the balance sheet of such
corporation as a liability on the date as of which Indebtedness is to be
determined.
Indenture:
The term "Indenture" or "this Indenture" shall mean this instrument and
all indentures supplemental hereto, including the terms of the Securities.
Interest:
The term "interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any Security
shall mean the Stated Maturity of an installment of interest on such Security.
Junior Subordinated Debt:
The term "Junior Subordinated Debt" shall mean the 7% Junior
Subordinated Deferrable Interest Debentures due November 15, 2028 of the
Company, the 6.850% Junior Subordinated Deferrable Interest Debentures due
January 22, 2038 of the Company, the 7 5/8% Junior Subordinated Deferrable
Interest Debentures due December 1, 2036 of the Company, the 7 3/4% Junior
Subordinated Deferrable Interest Debentures due December 1, 2036 of the Company,
the 8% Deferrable Interest Debentures due September 30, 2036 of the Company and
the 6 7/8% Junior Subordinated Deferrable Interest Debentures due March 15, 2029
of the Company and all other notes or other obligations which may be issued
under the Junior Subordinated Debt Indenture and any indebtedness that is by its
terms subordinated to or pari passu with the Junior Subordinated Debt.
Junior Subordinated Debt Indenture:
The term "Junior Subordinated Debt Indenture" shall mean the Indenture,
dated October 7, 1996, between the Company and The Chase Manhattan Bank, as
trustee, as supplemented by the First Supplemental Indenture thereto dated as of
December 15, 1998, as the same may be amended from time to time.
Mandatory Sinking Fund Payment:
The term "Mandatory Sinking Fund Payment" shall have the meaning
specified in Section 4.03.
Maturity:
The term "maturity," with respect to any Security, shall mean the date
on which the principal of such Security shall become due and payable as therein
and herein provided, whether by declaration, call for redemption or otherwise.
Officers' Certificate:
The term "Officers' Certificate," when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board of
Directors, any Vice Chairman, the Chief Financial Officer, the Chief Accounting
Officer, the Controller, the Treasurer, the General Counsel, the Deputy General
Counsel or any Vice President and by any Deputy Treasurer, any Assistant
Treasurer, 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 15.03 if and to the extent required by the provisions of such
Section.
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Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or of counsel to the Company, or may
be other counsel satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 15.03 if and to the extent required by
the provisions of such Section.
Optional Sinking Fund Payment:
The term "Optional Sinking Fund Payment" shall have the meaning
specified in Section 4.03.
Original Issue Discount Security:
The term "Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.02.
Outstanding:
The term "outstanding," when used as of any particular time with
reference to Securities, shall, subject to Section 7.03, mean all the Securities
which shall theretofore have been authenticated and delivered by the Trustee
under this Indenture, except
(a) Securities or portions thereof for which (i) funds sufficient to
pay the principal thereof, premium, if any, thereon and all unpaid interest
thereon to maturity or to the date fixed for the redemption thereof shall have
been deposited in trust for such purpose as provided herein with the Trustee or
with any paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent), and (ii) in case of redemption, notice of redemption thereof shall have
been duly given or provision satisfactory to the Trustee for the giving of such
notice shall have been made;
(b) Securities which shall have been surrendered to the Trustee for
cancellation;
(c) Securities paid or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to Section 2.06;
and
(d) Securities or portions thereof as to which the Company shall have
deposited in trust funds or U.S. Government Obligations and complied with other
conditions as specified in Section 11.04; provided, however, that in determining
whether the Holders of the requisite principal amount of the Securities then
outstanding have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02.
Person:
The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an unincorporated
organization or a government or an agency or political subdivision thereof.
Possessions:
The term "possessions" shall mean, with respect to the United States,
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
Northern Mariana Islands.
Principal Office of the Trustee:
The term "Principal Office of the Trustee" shall mean the principal
corporate trust office of the Trustee at which, at any particular time, its
corporate trust business shall be administered, which office at the date hereof
is located at 1 Bank One Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attn.:
Global Corporate Trust Services Division, except that for purposes of Section
5.02, such term shall mean the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, which office at the date hereof is located at
14 Wall Street, Eighth Floor, New York, New York 10005.
Record Date:
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The term "Record Date" shall mean, with respect to any interest payable
on any Security on any interest payment date, the close of business on the date
specified in such Security or, in the case of defaulted interest, the close of
business on any subsequent record date established as provided in Section 2.01
(in each case whether or not such day is a business day).
Redemption Date:
The term "Redemption Date" when used with respect to any Security to be
redeemed, in whole or in part, shall mean the date fixed for such redemption by
or pursuant to this Indenture and the terms of such Security.
Redemption Price:
The term "Redemption Price" when used with respect to any Security to
be redeemed shall mean the price (exclusive of accrued interest) at which it is
to be redeemed pursuant to this Indenture and the terms of such Security.
Registered Security:
The term "Registered Security" shall mean any Security in the form
established pursuant to Section 2.01 which is registered in the register kept
for that purpose hereunder.
Responsible Officers:
"Responsible Officers" of the Trustee hereunder shall mean and include
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
Security:
The term "Security" shall mean one of the Securities duly authenticated
by the Trustee and delivered pursuant to the provisions of this Indenture.
Securityholder, Holder of Securities; Holder:
The term "Securityholder" or "Holder of Securities" or "Holder," with
respect to a Registered Security, shall mean the person in whose name such
Securities shall be registered in the register kept for that purpose hereunder,
and with respect to a Bearer Security (or any temporary Global Security in
bearer form) or a Coupon, shall mean the bearer thereof.
Senior Indebtedness:
The term"Senior Indebtedness" shall mean (i) the principal, premium, if
any, and interest in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, notes, debentures, bonds
or other similar instruments issued by the Company; (ii) all capital lease
obligations of the Company and any synthetic lease or tax retention operating
lease; (iii) all obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Company and
all obligations of the Company under any conditional sale or title retention
agreement (but excluding trade accounts payable in the ordinary course of
business); (iv) all obligations, contingent or otherwise, of the Company in
respect of any letters of credit, banker's acceptance, security purchase
facilities and similar credit transactions; (v) all obligations of the Company
in respect of interest rate swap, cap or other agreements, interest rate future
or options contracts, currency swap agreements, currency future or option
contracts and other similar agreements; (vi) all obligations of the type
referred to in clauses (i) through (v) of other persons for the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise; and
(vii) all obligations of the type referred to in clauses (i) through (vi) of
other persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), except for (1) the
Securities, (2) any such indebtedness that is by its terms is subordinated to or
pari passu with the Securities, including all indebtedness issued under the
indenture dated as of July 17, 1998, between the Company (formerly Travelers
Group Inc.) and Bank One Trust Company, N.A. (formerly the First National Bank
of Chicago), as trustee, and (3) any indebtedness between or among the Company
and its Affiliates, including (x) any Junior Subordinated Debt, (y) any Trust
Preferred Securities Guarantees and (z) all other debt securities and guarantees
in respect of those debt securities issued to any other trust, or a trustee of
such trust, partnership or other entity affiliated with the Company which is a
financing vehicle of the Company (a "Financing Entity") in connection with the
issuance by such Financing Entity of preferred securities or other securities
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guaranteed by the Company pursuant to an instrument that ranks pari passu with,
or junior to, the Trust Preferred Securities Guarantees.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or
any installment of interest thereon shall mean the date specified in such
Security as the fixed date on which the principal (or any portion thereof) of or
premium, if any, on such Security or such installment of interest is due and
payable.
Subsidiary:
The term "Subsidiary" shall mean any corporation of which securities
(excluding securities entitled to vote for directors only by reason of the
happening of a contingency) entitled to elect at least a majority of the
corporation's directors shall at the time be owned, directly or indirectly,
by the Company, or one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
Trustee:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or successor, and if at any time there is more than one such
trustee, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to Securities of that series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean such Act as amended
to the date of this Indenture except as provided in Section 13.06.
Trust Preferred Securities Guarantees:
The term "Trust Preferred Securities Guarantees" shall mean the
guarantees issued by the Company in connection with the 8% Trust Preferred
Securities of Citigroup Capital I, the 7 3/4% Trust Preferred Securities of
Citigroup Capital II, the 7 5/8% Trust Preferred Securities of Citigroup Capital
III, the 6.850% Trust Preferred Securities of Citigroup Capital IV, the 7% Trust
Preferred Securities of Citigroup Capital V and the 6 7/8% Capital Securities of
Citigroup Capital VI and any guarantee now or hereafter entered into by the
Company in respect of any preferred or preference stock that is by its terms
subordinated to or pari passu with the Junior Subordinated Debt.
U.S. Government Obligations:
The term "U.S. Government Obligations" means either (i) direct
obligations of the United States of America or (ii) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the timely payment of which is unconditionally
guaranteed by the full faith and credit of the United States of America.
Certain other terms, relating principally to provisions included in
this Indenture in compliance with the Trust Indenture Act of 1939, are defined
in Article Ten.
SECTION 1.02 Notice to Holders of Securities; Waiver. Except as otherwise
expressly provided herein where this Indenture provides for notice to Holders of
Securities of any event.
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holders as it appears in the security
register, not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first publication
to be not earlier than the earliest date, and not later that the latest
date, prescribed for the giving of such notice.
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In case by reason of suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above or any defect in any notice so published, shall
affect the sufficiency of any notice to Holders of Registered Securities given
as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers by notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.03. Language of Notices, Etc. Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published notice may be an
official language of the country of publication.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms Generally; Record Dates; Place of Payment;
Denominations. Unless otherwise provided as contemplated by Section 2.02 with
respect to any series of Securities, the Securities of each series shall be
issuable in registered form without Coupons. If so provided as contemplated by
Section 2.02, the Securities of a series shall be issuable solely in bearer
form, or in both registered form and bearer form. Unless otherwise specified as
contemplated by Section 2.02, Securities in bearer form shall have interest
Coupons attached. The Securities and Coupons shall be in substantially the form
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing such
Securities or Coupons may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. If
Securities of a series (including temporary securities) are issuable in the form
of a Global Security, any such Global 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 to reflect
exchanges. Any endorsement of a Global Security 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. Any instructions by the
Company with respect to a Global Security shall be in writing but need not
comply with Section 15.03.
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The Securities shall be issued, except as otherwise provided with
respect to any series of Securities pursuant to Section 2.02, in the
denomination of $1,000 and any larger denomination which is an integral multiple
of $1,000 approved by the Company, such approval to be evidenced by the
execution thereof.
The person in whose name any Registered Security is registered at the
close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date;
provided, however, that, if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, the defaulted
interest shall be paid to the persons in whose names the outstanding Registered
Securities are registered on a subsequent Record Date, such Record Date to be
not less than 5 days prior to the date of payment of such defaulted interest,
established by notice given by mail by or on behalf of the Company to the
Holders of Registered Securities not less than 15 days preceding such subsequent
Record Date.
Unless otherwise specified as contemplated by Section 2.02, in case a
Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency
referred to in Section 2.05) on any Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment Date
(or the related proposed date of payment of defaulted interest, as the case may
be), such Bearer Security shall be surrendered without the Coupon relating to
such Interest Payment Date and interest (or defaulted interest, as the case may
be) will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
At the option of the Company, interest on Registered Securities and
principal thereof may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the register or by wire
transfer to an account maintained by the person entitled thereto as specified in
the register.
Unless otherwise provided as contemplated by Section 2.02 with respect
to any series of Securities, the principal of and interest and premium, if any,
on the Securities shall be payable in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
SECTION 2.02. Amount; Terms of Securities. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is not limited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from the Securities of all other series, except to
the extent that additional Securities of an existing series are being issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be outstanding under this Indenture (except as otherwise
provided in Sections 2.06, 2.08 or 13.05);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Record Dates for the determination of
Holders to whom interest is payable;
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(e) if other than such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public or private
debts, the coin or currency or currency unit in which payment of the principal
of, or premium, if any, or interest on the Securities of the series shall be
payable;
(f) if the amount of payment of principal of, or premium, if any, or
interest on the Securities of the series may be determined with reference to an
index, formula or other method including, but not limited to, an index, formula
or other method based on a coin or currency or currency unit other than that in
which the Securities are stated to be payable, the manner in which such amount
shall be determined;
(g) if the principal of, or premium, if any, or interest on the
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency or currency unit other than that in which
the Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(h) the place or places where the principal of, and premium, if any,
and interest on Securities of the series shall be payable;
(i) 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, if the Company is
to have that option;
(j) 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 at which, 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;
(k) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(l) whether the Securities of the series are to be issued as Original
Issue Discount Securities and the amount of discount with which such Securities
may be issued;
(m) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(n) the subordination terms of the Securities of the series (if
different from the terms provided herein);
(o) whether the Securities of the series are to be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities and the terms and conditions,
if any, upon which such Global Security or Securities may be exchanged in whole
or in part for other definitive Securities;
(p) the date as of which any Global Security of the series shall be
dated if other than the original issuance of the first Security of the series to
be issued;
(q) the form of the Securities of the series;
(r) the provisions of this Indenture that shall not apply to Securities
of the series;
(s) the application, if any, of either Section 11.02 or Section 11.03;
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(t) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether Bearer Securities of the series
are to be issuable with or without Coupons or both, in the case of Bearer
Securities, the date as of which such Bearer Securities shall be dated if other
than the date of original issuance of the first Security of such series of like
tenor and term to be issued, and whether, and on what terms and conditions,
Bearer Securities may be exchanged for Registered Securities;
(u) any other terms of the Securities of the series, including
additional or different Events of Default or Defaults, and/or covenants of the
Company (which terms shall not be inconsistent with the provisions of this
Indenture);
All Securities of any one series, and the Coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and except as may otherwise be provided by or pursuant
to such Board Resolution, and set forth in such Officers' Certificate, or in any
such indenture supplemental hereto. If any of the terms of a series of
Securities are established by action taken pursuant to a Board Resolution, a
copy of such Board Resolution shall be delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of such
series.
Notwithstanding Section 2.02(b) and unless otherwise expressly provided
with respect to a series of Securities, all Securities of a series need not be
issued at the same time and, unless otherwise provided by the Company, a series
may be reopened for issuances of additional Securities of such series or to
establish additional terms for such series.
SECTION 2.03. Certificate of Authentication Validates Securities. The
Securities and Coupons shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of its Chairman of the Board of Directors,
its President, any Vice Chairman, the Chief Financial Officer, the Chief
Accounting Officer, the Controller, the Treasurer, any Deputy Treasurer, any
Assistant Treasurer, the General Counsel, the Deputy General Counsel or any Vice
President, under its corporate seal (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise), which shall be attested by the
manual or facsimile signature of its Secretary or one of its Assistant
Secretaries. The Securities, together with any Coupons appertaining thereto,
shall then be delivered to the Trustee for authentication by it, and thereupon,
as provided herein, the Trustee shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States or its possessions; and provided further that a Bearer Security may be
delivered in connection with its original issuance only if the person entitled
to receive such Bearer Security shall have delivered to the Trustee, or such
other person as shall be specified in a temporary Global Security delivered
pursuant to Section 2.08, a certificate in the form required pursuant to Section
2.08. In case any officer of the Company who shall have signed any of the
Securities and Coupons shall cease to be such officer of the Company before the
Securities and Coupons so signed shall have been actually authenticated and
delivered by the Trustee, such Securities may nevertheless be issued,
authenticated and delivered as though the person who signed such Securities and
Coupons had not ceased to be such officer of the Company; and also any of the
Securities and Coupons may be signed on behalf of the Company by any person who
at the time of the execution of such Securities and Coupons shall be the proper
officer of the Company, even though at the date of the execution of this
Indenture such person may not have been such officer of the Company.
SECTION 2.04. Form of Certificate of Authentication. Only such of the
Securities or Coupons appertaining thereto as shall bear thereon a certificate
substantially in the form of the Trustee's certificate of authentication
hereinafter recited, executed by the Trustee by manual signature, shall be valid
or become obligatory for any purpose or entitle the Holder thereof to any right
or benefit under this Indenture, and the certificate of authentication by the
Trustee upon any such Security executed on behalf of the Company as aforesaid
shall be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder thereof is entitled to
the benefits of this Indenture. Except as permitted by Section 2.06, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
Coupons for interest then matured have been detached and canceled.
Notwithstanding the foregoing, if any Security or portion thereof shall have
been duly authenticated and delivered hereunder but
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never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 15.04 together
with a written statement (which need not comply with Section 15.03 and need not
be accompanied by an Opinion of Counsel) stating that such Security or portion
thereof 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.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security and any Global Security shall be dated as of the date
specified as contemplated by Section 2.02.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued
under the Indenture described herein.
___________________________________ ,
as Trustee
By __________________________________
Authorized Signatory
SECTION 2.05. Maintenance of Register at New York Office; Transfer of
Securities; Exchange of Securities; Persons Deemed Owners. The Company will
keep, at an office or agency to be maintained by it in the Borough of Manhattan,
The City of New York, a register for the registration and the registration of
transfer of the Registered Securities, as in this Indenture provided, which
register shall at all times be open for inspection by the Trustee. Such register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time.
Upon surrender for registration of transfer of any Registered Security
of any series at such office or agency, the Company shall execute and the
Trustee shall authenticate and deliver a Registered Security or Securities of
such series for a like aggregate principal amount, in such authorized
denomination or denominations and registered in such name or names as may be
requested. The transfer of any Registered Security shall not be valid as against
the Company or the Trustee unless registered at such office or agency by the
Holder, or by his attorney duly authorized in writing.
Registered Securities of any series in their several authorized
denominations are exchangeable for a Registered Security or Securities of such
series in authorized denominations and of a like aggregate principal amount.
Registered Securities to be exchanged as aforesaid shall be surrendered for that
purpose by the Holder thereof at such office or agency, and the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Registered Security or Securities in such authorized denomination or
denominations as the Securityholder making the exchange shall have requested and
shall be entitled to receive. The Company shall not be required to make any
exchange or effect registration of transfer of (i) any Registered Security which
shall have been designated for redemption in whole or in part except, in the
case of any Security to be redeemed in part, the portion thereof not so to be
redeemed, or (ii) any Registered Security for a period of 15 days next preceding
any selection of Registered Securities of such series for redemption. Registered
Securities may not be exchanged for Bearer Securities.
Subject to the terms of a series pursuant to Section 2.02(t), Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like
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aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if (a) in the case
of fixed rate Bearer Securities, the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing Coupon or Coupons, or (b) 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 such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of any
such payment from the Company; provided, however, that interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency of a paying agent, maintained pursuant to Section 5.02
for such purpose, located outside the United States and its possessions.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
agency on (i) any Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Record Date and
before the opening of business at such office or agency on the related date for
payment of defaulted interest, such Bearer Security shall be surrendered without
the Coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Trustee) duly executed by, the
Holder or by his attorney duly authorized in writing.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and
treat the person in whose name any Registered Security is registered 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 all
purposes whatsoever (subject to the provisions set forth herein relating to
Record Dates), and the Company and the Trustee, and the agents of either, shall
not be affected by any notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever whether or
not such Security or Coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any paying agent, or the security
registrar will have the responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interest
of a Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest, and they shall be fully
protected in acting or refraining from acting on any such information provided
by the Depositary.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.02, any permanent Global Security shall be
exchangeable pursuant to this Section only as provided in this paragraph. If the
beneficial owners of interests in a permanent Global Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as
contemplated by Section 2.02, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee or the security registrar definitive
Securities of that series in aggregate principal amount equal to the principal
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amount of such permanent Global Security executed by the Company. On or after
the earliest date on which such interests may be so exchanged, in accordance
with instructions given by the Company to the Trustee or the security registrar
and the Depositary (which instructions shall be in writing but need not comply
with Section 15.03 or be accompanied by an Opinion of Counsel), such permanent
Global Security shall be surrendered from time to time by the Depositary, as
shall be specified in the Company instructions with respect thereto to the
Trustee, as the Company's agent for such purpose, or to the security registrar,
to be exchanged, in whole or in part, for definitive Securities of the same
series without charge and the Trustee shall authenticate and deliver in
accordance with such instructions, in exchange for each portion of such
permanent Global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent Global Security to be exchanged which unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for the
permanent Global Security shall be issuable only in the form in which the
Securities are issuable, as specified as contemplated by Section 2.02, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that series
and of like tenor for redemption and ending on the relevant Redemption Date; and
provided, further, that no Bearer Security delivered in exchange for a portion
of a permanent Global Security shall be mailed or otherwise delivered to any
location in the United States or its possessions. Promptly following any such
exchange in part, such permanent Global Security should be returned by the
Trustee or the security registrar to the Depositary in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a permanent Global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Record Date and before the opening
of business at such office or agency on the related proposed date for payment of
defaulted interest, interest or defaulted interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the person to whom interest in respect of such portion of such permanent Global
Security is payable in accordance with the provisions of this Indenture.
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security of a particular series (or the Coupons
appertaining thereto) shall become mutilated or be destroyed, lost or stolen,
then upon the conditions hereinafter set forth the Company in its discretion may
execute, and thereupon the Trustee shall authenticate and deliver, a new
Security of the same series of like tenor and principal amount and bearing a
different number, in exchange and substitution for and upon cancellation of the
mutilated Security or in lieu of and substitution for the Security so destroyed,
lost or stolen; provided, however, that if any such mutilated, destroyed, lost
or stolen Security shall have become or is about to become due and payable upon
the maturity thereof, the Company in its discretion may, instead of issuing a
substitute Security, pay such Security without requiring the surrender thereof.
The applicant for any substitute Security or for payment of any such mutilated,
destroyed, lost or stolen Security shall furnish to the Company and to the
Trustee evidence satisfactory to them, in their discretion, of the ownership of
and the destruction, loss or theft of such Security and shall furnish to the
Company and to the Trustee indemnity satisfactory to them, in their discretion,
and, if required, shall reimburse the Company and the Trustee for all expenses
(including counsel fees and any tax or other governmental charge that may be
imposed in relation thereto) in connection with the preparation, issue and
authentication of such substitute Security or the payment of such mutilated,
destroyed, lost or stolen Security, and shall comply with such other reasonable
regulations as the Company and the Trustee, or either of them, may prescribe.
Any such new Security delivered pursuant to this Section 2.06 shall constitute
an additional contractual obligation on the part of the Company, whether or not
the allegedly destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be equally and proportionately entitled to the
benefit of this Indenture with all other Securities of the same series issued
hereunder. All Securities shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies.
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SECTION 2.07. Rights Regarding Exchanged or Substituted Securities.
Subject to the provisions set forth herein relating to Record Dates, each
Security delivered pursuant to any provision of this Indenture in exchange or
substitution for, or upon registration of transfer of, any other Security shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.08. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities or Coupons may determine as evidenced by their execution of such
Securities or Coupons. In the case of any series issuable as Bearer Securities,
such temporary Securities shall be delivered only in compliance with the
conditions set forth in Section 2.03 and may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured Coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further,
however, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 2.03.
All Bearer Securities shall be issued initially in the form of a
temporary Global Security and any such temporary Global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefits of Euroclear and
Clearstream Banking, for credit to the respective accounts for the beneficial
owners of such Securities (or to such other accounts as they may direct).
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities (including a permanent
Global Security) of the same series and of like tenor after the Exchange Date
(as defined below) when the account holder instructs Euroclear or Clearstream
Banking, as the case may be, to request such exchange on his behalf and in the
case of Bearer Securities, delivers a certificate in the form set forth in
Exhibit A to this Indenture (whether or not such certificate is delivered in
connection with the payment of interest, as provided in the second succeeding
paragraph) signed by the owner of the Security or a financial institution or
clearing organization through which the owner directly or indirectly holds such
Security, and dated no earlier than 15 days prior to the date on which Euroclear
or Clearstream Banking, as the case may be, furnishes to the Depositary in
accordance with the preceding paragraph a certificate in the form set forth in
Exhibit B to this Indenture that relates to the interest to be exchanged for
definitive Securities. Copies of the certificate in the form set forth in
Exhibit A to this Indenture shall be available from the offices of Euroclear and
Clearstream Banking, the Trustee, any authenticating agent appointed for such
series of Securities and each paying agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a person
receiving the definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such person does not take delivery
of such definitive Securities in person at the offices of Euroclear
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or Clearstream Banking. Definitive Bearer Securities to be delivered in exchange
for any portion of a temporary Global Security shall be delivered only outside
the United States and its possessions.
Without necessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series, in aggregate principal amount
equal to the principal amount of such temporary Global Security, executed by the
Company. On or after the Exchange Date such temporary Global Security shall be
presented and surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose or to the security registrar, to be exchanged,
in whole or from time to time in part, for definitive Securities of such series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, a like aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
exchanged and in bearer form, registered form, permanent Global bearer form or
permanent Global registered form, or any combination thereof as contemplated by
Section 2.02, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that unless only Registered
Securities are to be exchanged in respect of such temporary Global Security,
upon such presentation by the Common Depositary, such temporary Global Security
must be accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by Clearstream Banking as to the portion of
such temporary Global Security held for its account then to be exchanged, each
in the form set forth in Exhibit B to this Indenture; provided further, however,
that definitive Bearer Securities (including a permanent bearer form Global
Security) shall be delivered in exchange for a portion of a temporary Global
Security only in compliance with the requirements of Section 2.03.
Upon any exchange of a portion of any temporary Global Security, such
Global Security shall be endorsed by or on behalf of the Trustee to reflect the
reduction in the principal amount evidenced thereby. Until exchanged in full as
hereinabove provided, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
2.01, interest payable on a temporary Global Security on any Interest Payment
Date for Securities of such series occurring prior to the exchange of such
temporary Global Security shall be payable to Euroclear and Clearstream Banking
on such Interest Payment Date upon delivery by Euroclear and Clearstream Banking
to the Trustee or the applicable paying agent of a certificate or certificates
in the form set forth in Exhibit C to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the persons for whom Euroclear or Clearstream Banking, as the case may be, holds
such temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or Clearstream Banking, as the case may be, a certificate
in the form set forth in Exhibit A to this Indenture. If such Interest Payment
Date occurs on or after the Exchange Date, Euroclear or Clearstream Banking, as
the case may be, following the receipt of such certificate shall exchange, in
accordance with the procedures hereinabove provided, the portion of the
temporary Global Security that relates to such certificate for definitive
Securities (which, in the absence of instructions to the contrary, shall be an
interest in a permanent Global Security). Any interest so received by Euroclear
and Clearstream Banking and not paid as herein provided shall be returned to the
Trustee or the applicable paying agent immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 5.03.
SECTION 2.09. Transfer and Exchange of Global Securities. (a) A Global
Security may be transferred, in whole but not in part, only to another nominee
of the Depositary, or to a successor Depositary selected or approved by the
Company or to a nominee of such successor Depositary.
(b) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for any series of Securities or if
at any time the Depositary for such series shall no longer be registered or in
good standing under the Securities Exchange Act of 1934, as amended, or any
other
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applicable U.S. or foreign statute or regulation, and a successor Depositary for
such securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, the
Company will execute, and, subject to Articles Two and Three, the Trustee, upon
written notice from the Company, will authenticate and deliver the Securities of
such series in definitive registered form without Coupons (in the case of a
registered form Global Security) or in bearer form either with or without
Coupons, as specified by the Company (in the case of a bearer form Global
Security), in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security. In such event
the Company will execute, and subject to Section 2.05, the Trustee, upon receipt
of an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in definitive registered
form without Coupons (in the case of a registered form Global Security) or in
bearer form either with or without Coupons, as specified by the Company (in the
case of a bearer form Global Security), in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
for such series in exchange for such Global Security. Such Securities in
definitive registered form issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary, for delivery to the persons in whose names such Securities are so
registered.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series, together with any Coupons appertaining
thereto, executed by the Company to the Trustee for authentication. The Trustee
shall thereupon authenticate and deliver such Securities to or upon the written
order of the Company, signed by its Chairman of the Board of Directors, its
President, any Vice Chairman, the Chief Financial Officer, the Chief Accounting
Officer, the Controller, the Treasurer, any Deputy Treasurer, any Assistant
Treasurer, the General Counsel, the Deputy General Counsel or any Vice
President, without any further action by the Company; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States or its possessions; and
provided further that a Bearer Security may be delivered in connection with its
original issuance only if the person entitled to receive such Bearer Security
shall have delivered to the Trustee, or such other person as shall be specified
in a temporary Global Security delivered pursuant to Section 2.08, a certificate
in the form required by Section 2.08. 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 10.02) shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution, certified by
the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 15.03,
which shall also state:
(1) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(e), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
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(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(3) that such Securities, 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 legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and will
be entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not contravene
the charter or by-laws of the Company or result in any violation of any
of the terms or provisions of any law or regulation or of any
indenture, mortgage or other agreement by which the Company is bound
and under which long-term debt of the Company as reflected in its
latest financial statements on file with the Securities and Exchange
Commission is outstanding; and
(6) that all requirements of this Indenture applicable to the
Company in respect of the execution and delivery by the Company of such
Securities and of such supplemental indenture, if any, have been
complied with and that, assuming (a) all requisite corporate
authorization on the part of the Trustee, (b) continued compliance by
the Trustee with the terms of the Indenture specifically applicable to
the Trustee, and (c) due authentication and delivery of such Securities
by the Trustee, the execution and delivery of such supplemental
indenture, if any, will not violate the terms of this Indenture, and
that, other than compliance with federal and state securities laws, no
authorization, approval or consent by any regulatory or statutory or
other public authority is required in connection with the execution and
delivery of such supplemental indenture or for the creation, issuance,
authentication and delivery of the Securities pursuant to this
Indenture.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.02 and of this Section
3.01, if all the Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate or
supplemental indenture otherwise required pursuant to Section 2.02 or the
written order of the Company, Officers' Certificate and Opinion of Counsel
required pursuant to this Section 3.01 at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first Security of such
series to be issued.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Rights of Redemption. Redemption of Securities (other
than pursuant to a sinking fund or analogous provision) permitted by the terms
of any series of Securities shall be made in accordance with such terms and
Section 4.02; provided, however, that if any such terms of a series of
Securities shall conflict with any provision of this Article, the terms of such
series shall govern.
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SECTION 4.02. Notices of Redemption. The election of the Company to
redeem any Securities of any series shall be evidenced by or pursuant to a Board
Resolution. If the Company shall elect to redeem the Securities of any series in
whole or in part as aforesaid, it shall fix a date for redemption and give
notice pursuant to Section 1.02 of its election so to redeem at least 30 days
prior to the redemption date. Such notice shall be sufficiently given to Holders
of Bearer Securities if published in an Authorized Newspaper in The City of New
York and, if the Securities of such series are then listed on any stock exchange
and such stock exchange shall so require, in any other required city outside the
United States, or, if not practicable, elsewhere in Europe on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
Each notice of redemption shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities, together in
the case of Bearer Securities with all remaining Coupons appertaining thereto,
if any, to be redeemed and the Redemption Price and that the Securities
designated in such notice for redemption are required to be presented on or
after such Redemption Date, together in the case of Bearer Securities with all
remaining Coupons appertaining thereto, if any, and at such place for payment
and that interest to the Redemption Date on the Securities and portions of
Securities called for redemption will be paid as specified in said notice and
shall cease to accrue thereon on such date. If less than all the outstanding
Securities of a series are to be redeemed, the notice shall also designate the
Securities or portions of Securities that are to be redeemed. If any Security is
to be redeemed in part only, the notice shall also state that upon presentation
of such Security on or after the Redemption Date at said place, such Security
will be cancelled and a new Security or Securities of the same series, in an
aggregate principal amount equal to the unredeemed portion of such Security,
will be issued and delivered without charge to the Holder; provided, however,
that if a Global Security is so cancelled, the new Global Security will be in an
aggregate principal amount equal to the unredeemed portion of the Global
Security so cancelled.
Notice of redemption having been so given, the Securities and portions
of Securities to be redeemed shall on the Redemption Date specified in such
notice become due and payable at the applicable Redemption Price, together with
interest accrued thereon to the Redemption Date, and from and after the
Redemption Date so specified (unless the Company shall default in the payment of
the Redemption Price of such Securities or any such accrued interest), interest
on such Securities and portions of Securities shall cease to accrue, and the
Coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void, and upon
presentation of such Securities, together in the case of Bearer Securities with
all remaining Coupons appertaining thereto, if any, at said place of payment and
redemption in accordance with said notice, such Securities and portions of
Securities shall be paid by the Company at the applicable Redemption Price,
together with interest accrued to the Redemption Date; provided that the
installment of interest on Registered Securities whose Stated Maturity is on the
Redemption Date shall be payable to the Holders of such Securities registered as
such at the close of business on the applicable Record Date, subject to the
provisions of Section 2.01 and provided further, that installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 2.02, only upon
presentation and surrender of Coupons for such interest.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any paying agent harmless. If thereafter the Securityholder of such
Security shall surrender to the Trustee or any paying agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Securityholder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by Coupons shall be payable only at
an office or agency located outside the United States and its possessions and,
unless otherwise specified as contemplated by Section 2.02, only upon
presentation and surrender of those Coupons, and provided further, that if the
interest on such Coupons is calculated on a floating interest rate, all Coupons
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maturing after the Redemption Date not accompanying Bearer Securities
surrendered for redemption shall be null and void.
If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. Unless otherwise provided in the Officers' Certificate or Supplemental
Indenture provided for in Section 2.02, no Security of a denomination of $1,000
shall be redeemed in part and Securities may be redeemed in part only in
integral multiples of $1,000. The Trustee shall, as soon as practical, notify
the Company in writing of the Securities and portions of Securities so selected.
SECTION 4.03. Applicability of Sinking Fund. Redemption of Securities
permitted or required pursuant to a sinking fund for the retirement of
Securities of a series by the terms of such series of Securities shall be made
in accordance with such terms of such series of Securities and this Article;
provided, however, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "Mandatory Sinking
Fund Payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "Optional
Sinking Fund Payment." If provided for by the terms of Securities of any series,
the cash amount of any Mandatory Sinking Fund Payment may be subject to
reduction as provided in Section 4.04.
SECTION 4.04. Mandatory Sinking Fund Obligation. The Company may, at
its option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or
in part, with respect to a particular series of Securities by (1) delivering to
the Trustee outstanding Securities of such series in transferable form,
together with, in the case of Bearer Securities, all unmatured Coupons
appertaining thereto, theretofore purchased or otherwise acquired by the Company
or redeemed at the election of the Company pursuant to Section 4.01 or (2)
receiving credit for Securities of such series (not previously so credited)
acquired by the Company and theretofore delivered to the Trustee for
cancellation. The Trustee shall credit such Mandatory Sinking Fund Payment
obligation with an amount equal to the redemption price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation,
it shall deliver to the Trustee not less than 45 days prior to the relevant
sinking fund payment date a written notice signed on behalf of the Company by
its Chairman of the Board of Directors, its President, any Vice Chairman, the
Chief Financial Officer, the Chief Accounting Officer, the Controller, the
Treasurer, any Deputy Treasurer, any Assistant Treasurer, the General Counsel,
the Deputy General Counsel or any Vice President which shall designate the
Securities (and portions thereof, if any) so delivered or credited and which
shall be accompanied by such Securities (to the extent not theretofore delivered
and cancelled) in transferable form. In case of the failure of the Company, at
or before the time so required, to give such notice and deliver such Securities
the Mandatory Sinking Fund Payment obligation shall be paid entirely in funds.
SECTION 4.05. Optional Redemption At Sinking Fund Redemption Fund
Price. In addition to the sinking fund requirements of Section 4.04, to the
extent, if any, provided for by the terms of a particular series of Securities,
the Company may, at its option, make an Optional Sinking Fund Payment with
respect to such Securities. Unless otherwise provided by such terms, (a) to the
extent that the right of the Company to make such Optional Sinking Fund Payment
shall not be exercised in any year, it shall not be cumulative or carried
forward to any subsequent year, and (b) such optional payment shall operate to
reduce the amount of any Mandatory Sinking Fund Payment obligation as to
Securities of the same series. If the Company intends to exercise its right to
make such optional payment in any year it shall deliver to the Trustee not less
than 45 days prior to the relevant sinking fund payment date a certificate
signed by its Chairman of the Board of Directors, its President, any Vice
Chairman, the Chief Financial Officer, the Chief Accounting Officer, the
Controller, the Treasurer, any Deputy Treasurer, any Assistant Treasurer, the
General Counsel, the Deputy
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General Counsel or any Vice President stating that the Company will exercise
such optional right, and specifying the amount which the Company will pay on or
before the next succeeding sinking fund payment date. Such certificate shall
also state that no default has occurred and is continuing.
SECTION 4.06. Application of Sinking Fund Payments. If the sinking fund
payment or payments made in funds pursuant to either Sections 4.04 or 4.05 with
respect to a particular series of Securities plus any unused balance of any
preceding sinking fund payments made in funds with respect to such series shall
exceed $50,000 (or a lesser sum if the Company shall so request, or such
equivalent sum as set forth in the Officers' Certificate or supplemental
indenture provided for in Section 2.02 for Securities denominated other than in
U.S. dollars), it shall be applied by the Trustee on the sinking fund payment
date next following the date of such payment, unless the date of such payment
shall be a sinking fund payment date, in which case such payment shall be
applied on such sinking fund payment date, to the redemption of Securities of
such series at the redemption price specified in Section 4.03. The Trustee shall
select, in the manner provided in Section 4.02, for redemption on such sinking
fund payment date, a sufficient principal amount of Securities of such series to
absorb said funds, as nearly as may be, and shall, at the expense and in the
name of the Company, thereupon cause notice of redemption of the Securities to
be given in substantially the manner provided in Section 4.02 for the redemption
of Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 4.06. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
On or prior to each sinking fund payment date, the Company shall pay to
the Trustee a sum equal to all interest accrued to the date fixed for redemption
on Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.06.
The Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail or provide any notice of redemption of Securities of such
series by operation of the sinking fund during the continuance of a default in
payment of interest on any Securities of such series or of any Default (other
than a default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such Default shall occur and any moneys thereafter
paid into the sinking fund shall, during the continuance of such Default, be
held as security for the payment of all the Securities of such series; provided,
however, that in case such Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking fund payment
date on which such moneys are required to be applied pursuant to the provisions
of this Section 4.06.
ARTICLE FIVE
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay the principal of and premium, if any, on each of
the Securities, and the interest which shall have accrued thereon, at the dates
and place and in the manner provided in the Securities, any Coupons appertaining
thereto and in this Indenture. Unless otherwise specified as contemplated by
Section 2.02 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable
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only outside the United States and its possessions upon presentation and
surrender of the several Coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency. As long as any of the
Securities shall remain outstanding, the Company will maintain an office or
agency in the Borough of Manhattan, The City of New York, where Securities
(other than Bearer Securities, except as provided below) may be presented for
payment, exchange and registration of transfer as in this Indenture provided and
where notices and demands to or upon the Company in respect of this Indenture
and of the Securities, whether registered or bearer, may be served. The Company
will from time to time give written notice to the Trustee of the location of
such office or agency and of any change in the location thereof. In case the
Company shall fail to maintain any such office or agency or to give such notice
of its location or of any change in the location thereof, presentations and
demands may be made and notices may be served at the Principal Office of the
Trustee. The Company hereby initially designates the Principal Office of the
Trustee as its office or agency for all the above purposes.
If Securities of a series may be issuable as Bearer Securities, the
Company will maintain subject to any laws or regulations applicable thereto, in
a place of payment for that series which is located outside the United States,
an office or agency where Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Securities of that series); provided, however, that if the
Securities of that series are listed on a stock exchange located outside the
United States and its possessions and the rules of such stock exchange shall so
require, the Company will maintain a paying agent for the Securities of that
series in each city located outside the United States, as required by the rules
and regulations of such stock exchange, so long as the Securities of that series
are listed on such exchange. 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 any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations, and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the Principal Office of the Trustee, except that Bearer Securities of
that series and the related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series) at the place specified for the purpose as contemplated by Section
2.02, and the Company hereby appoints the Trustee as its agent to receive such
respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or its possessions or by check
mailed to any address in the United States or its possessions or by transfer to
an account maintained with a bank located in the United States or its
possessions; provided, however, payment of principal of and any premium and
interest denominated in U.S. dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States or its possessions
if (but only if) payment of the full amount of such principal, premium, interest
or additional amounts in U.S. dollars at all offices outside the United States
or its possessions maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or
similar restrictions. Unless otherwise provided as contemplated by Section 2.02
with respect to any series of Securities, at the option of the Securityholder of
any Bearer Security or related Coupon, payment may be made by check in the
currency designated for such payment pursuant to the terms of such Bearer
Security presented or mailed to an address outside the United States or by
transfer to an account in such currency maintained by the payee with a bank
located outside the United States.
SECTION 5.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own paying agent with respect to any series
of Securities, then, on or before the date on which the principal of and
premium, if any, or interest on any of the Securities of that series and any
appurtenant Coupons, by their terms or as a result of the calling thereof for
redemption shall become payable, the Company will set apart and segregate and
hold in trust for the benefit of the Holders of such Securities a sum sufficient
to pay such principal and premium, if any, or interest which shall have so
become payable and will
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notify the Trustee of its failure to act in that regard and of any failure by
the Company or any other obligor upon the Securities of that series to make any
such payment. If the Company shall appoint, and at the time have, a paying agent
for the payment of the principal of and premium, if any, or interest on any
series of Securities and any appurtenant Coupons, then, on or before the date on
which the principal of and premium, if any, or interest on any of the Securities
of that series and any appurtenant Coupons, shall become payable as aforesaid,
whether by their terms or as a result of the calling thereof for redemption, the
Company will pay to such paying agent a sum sufficient to pay such principal and
premium, if any, or interest, to be held in trust for the benefit of the Holders
of such Securities. If such paying agent shall be other than the Trustee, the
Company 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 5.03, (1) that such paying agent shall hold all
sums held by such paying agent for the payment of the principal of and premium,
if any, or interest on the Securities of that series and any appurtenant
Coupons, in trust for the benefit of the Holders of such Securities until such
sums shall be paid to the Holder of such Securities or otherwise disposed of as
herein provided; (2) that such paying agent shall give to the Trustee notice of
any default by the Company or any other obligor upon the Securities of that
series in the making of any payment of the principal of and premium, if any, or
interest on the Securities of that series and any appurtenant Coupons, when the
same shall have become due and payable; and (3) that such paying agent shall, at
any time during the continuance of any such default, upon the written request of
the Trustee, deliver to the Trustee all sums so held in trust by it.
Anything in this Section 5.03 to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a release or satisfaction
of this Indenture or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust by it or by any paying agent other than the
Trustee as required by this Section 5.03, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such paying agent.
Any money deposited with the Trustee or any paying agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Securities of any series or Coupons appertaining thereto and
remaining unclaimed for two years after such principal and any premium or
interest has become due and payable shall be paid to the Company on request by
the Company, or (if then held by the Company) shall be discharged from such
trust; and the holder of such Securities or any Coupon appertaining thereto
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such paying agent with
respect to such trust money and all liability of the Company as trustee thereof
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment, may at the expense of the
Company mail to Holders of Registered Securities or cause to be published once,
in a newspaper of general circulation in each place of payment, or both, a
notice that such money remains unclaimed and that after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 5.04. Statement as to Compliance. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year, a written
statement signed by any Vice Chairman, the Chief Financial Officer, the Chief
Accounting Officer, the Controller, the Treasurer, any Deputy Treasurer or any
Assistant Treasurer of the Company, stating that:
(a) a review of the activities of the Company during such year with
regard to its compliance with this Indenture has been made under such officer's
supervision; and
(b) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under Sections 5.01 to 5.03 of this
Indenture throughout such year, or, if there has been a default (without regard
to periods of grace or notice requirements) in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
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ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of Default. The term "Event of Default" as used in
this Indenture with respect to Securities of any series shall mean one of the
following described events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture, if any, under which such series of Securities is
issued:
(a) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary case
under the Federal bankruptcy code, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for
substantially all of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days;
(b) the commencement by the Company of a voluntary case under the
Federal bankruptcy code, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy laws, insolvency or other similar law
now or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent by
the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or similar official)
of the Company or for substantially all of its property, or the making by it of
an assignment for the benefit of creditors; or
(c) the occurrence of any other Event of Default with respect to
Securities of such series as provided in a supplemental indenture, Board
Resolution or Officers' Certificate applicable to such series of Securities.
SECTION 6.02. Acceleration of Maturity. If any one or more of the
above-described Events of Default shall happen with respect to Securities of any
series at the time outstanding, then, and in each and every such case, during
the continuance of any such Event of Default, the Trustee or the Holders of 25%
or more in principal amount of the Securities of such series then outstanding
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Securities of such series then
outstanding, if not then due and payable, to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by such
Holders), and upon any such declaration the same shall become and 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 all the Securities
of such series shall have been so declared to be due and payable, all arrears of
interest, if any, upon all the Securities of such series (with interest, to the
extent that interest thereon shall be legally enforceable, on any overdue
installment of interest at the rate borne by the Securities of such series) and
all amounts owing the Trustee and any predecessor trustee hereunder under
Section 10.01(a) and all other sums payable under this Indenture (except the
principal of the Securities of such series which would not be due and payable
were it not for such declaration), shall be paid by the Company, and every other
Default under this Indenture, other than the non-payment of the principal of
Securities of that series which have become due solely by such declaration of
acceleration, shall have been made good to the reasonable satisfaction of the
Trustee or of the Holders of a majority in principal amount of the Securities of
such series then outstanding, or provision deemed by the Trustee or by such
Holders to be adequate therefor shall have been made, then and in every such
case the Holders of a majority in principal amount of the Securities of such
series then outstanding may, on behalf of the Holders of all the Securities of
such series, waive the Event of Default by reason of which the principal of the
Securities of such series shall have been so declared to be due and payable and
may rescind and annul such declaration and its consequences; but no such waiver,
rescission or annulment shall extend to or affect any subsequent Default or
impair any right consequent thereon. Any declaration by the Trustee pursuant to
this Section 6.02 shall be by written notice to the Company, and any declaration
or waiver by the
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Holders of Securities of any series pursuant to this Section 6.02 shall be by
written notice to the Company and the Trustee.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. If the Company shall fail for a period of 30 days to pay any
installment of interest on the Securities of any series or shall fail to pay the
principal of and premium, if any, on any of the Securities of such series when
and as the same shall become due and payable, whether at maturity, or by call
for redemption (otherwise than pursuant to a sinking fund) by declaration as
authorized by this Indenture, or otherwise, or shall fail for a period of 30
days to make any sinking fund payment as to a series of Securities, then, upon
demand of the Trustee, the Company will pay to the Trustee for the benefit of
the Holders of Securities of such series or Coupons appertaining thereto, then
outstanding the whole amount which then shall have become due and payable on any
such Security or Coupon, with interest on the overdue principal and premium, if
any, and (so far as the same may be legally enforceable) on the overdue
installments of interest at the rate borne by the Securities of such series, and
all amounts owing the Trustee and any predecessor trustee hereunder under
Section 10.01(a).
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment to the Trustee of all amounts owing the Trustee and any predecessor
trustee hereunder under Section 10.01(a), shall be for the ratable benefit of
the Holders of such series of Securities which shall be the subject of such
action or proceeding. All rights of action upon or under any of the Securities
or Coupons or this Indenture may be enforced by the Trustee without the
possession of any of the Securities or Coupons and without the production of any
thereof at any trial or any proceeding relative thereto.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture, or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee to File Claims As Attorney-In-Fact. The Trustee
is hereby appointed, and each and every Holder of the Securities and Coupons, by
receiving and holding the same, shall be conclusively deemed to have appointed
the Trustee, the true and lawful attorney-in-fact of such Holder, with authority
to make or file (whether or not the Company shall be in default in respect of
the payment of the principal of, or interest on, any of the Securities), in its
own name and as trustee of an express trust or otherwise as it shall deem
advisable, in any receivership, insolvency, liquidation, bankruptcy,
reorganization or other judicial proceeding relative to the Company or any other
obligor upon the Securities or to their respective creditors or property, any
and all claims, proofs of claim, proofs of debt, petitions, consents, other
papers and documents and amendments of any thereof, as may be necessary or
advisable in order to have the claims of the Trustee and any predecessor trustee
hereunder and of the Holders of the Securities allowed in any such proceeding
and to collect and receive any moneys or other property payable or deliverable
on any such claim, and to execute and deliver any and all other papers and
documents and to do and perform any and all other acts and things, as it may
deem necessary or advisable in order to enforce in any such proceeding any of
the claims of the Trustee and any predecessor trustee hereunder and of any of
such Holders in respect of any of the Securities; and any receiver, assignee,
trustee, custodian or debtor in any such proceeding is hereby authorized, and
each and every taker or Holder of the Securities, by receiving and holding the
same, shall be conclusively deemed to have authorized any such receiver,
assignee, trustee, custodian or debtor, to make any such payment or delivery
only to or on the order of the Trustee, and to pay to the Trustee any amount due
it and any predecessor trustee hereunder under Section 10.01(a); provided,
however, that nothing herein
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contained shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any Holder of Securities or Coupons, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any Holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any Holder of any Securities in any such proceeding.
SECTION 6.05. Application of Money Collected. Any moneys collected by
the Trustee with respect to a series of Securities under this Article Six shall
be applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Securities,
and stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due to the Trustee and any
predecessor trustee hereunder under Section 10.01(a).
Second: Subject to Article Fourteen, in case the principal of
the outstanding Securities of such series and Coupons appertaining
thereto shall not have become due and be unpaid, to the payment of
interest on the Securities of such series and Coupons appertaining
thereto, 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 rate borne by such Securities, such payments to be made ratably to
the persons entitled thereto.
Third: Subject to Article Fourteen, in case the principal of
the outstanding Securities of such series shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon the Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal
and premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
rate borne by the Securities of such series, and in case such moneys
shall be insufficient to pay in full the whole amounts so due and
unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or
priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, 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 premium, if any, and accrued and unpaid
interest.
SECTION 6.06. Control by Holders; Waiver of Past Default. The Holders
of a majority in principal amount of the Securities of any series at the time
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee hereunder, or of exercising any trust or
power hereby conferred upon the Trustee with respect to the Securities of such
series; provided, however, that, subject to the provisions of Sections 10.01 and
10.02, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel determines that the action so directed
may not lawfully be taken or would be unduly prejudicial to Holders not joining
in such direction or would involve the Trustee in personal liability. Prior to
any declaration accelerating the maturity of the Securities of any series, the
Holders of a majority in aggregate principal amount of such series of Securities
at the time outstanding may on behalf of the Holders of all of the Securities of
such series waive any past default hereunder and its consequences except a
default not theretofore cured in the payment of interest or any premium on or
the principal of the Securities of such series or in respect of any covenant or
provision hereof which under Article Thirteen cannot be modified or waived
without the consent of the Holder of each outstanding Security of each series
affected thereby. Upon any such waiver the Company, the Trustee and the Holders
of the Securities of such series 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. Whenever any
default hereunder shall have been waived as permitted by this Section 6.06, said
default shall for all purposes of the Securities of such series and this
Indenture cease to exist, and any Default or Event of Default arising therefrom
shall be deemed to have been cured and to be not continuing.
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SECTION 6.07. Limitation on Suits; Default. No Holder of any Security
of any series or any related Coupons shall have any right to institute any
action, suit or proceeding at law or in equity for the execution of any trust
hereunder or for the appointment of a receiver or for any other remedy
hereunder, in each case with respect to a Default with respect to such series of
Securities, unless such Holder previously shall have given to the Trustee
written notice of the happening of one or more of the Defaults herein specified
with respect to such series of Securities, and unless also the Holders of 25% in
principal amount of the Securities of such series then outstanding shall have
requested the Trustee in writing to take action in respect of the matter
complained of, and unless also there shall have been offered to the Trustee
security and indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after receipt of such notification, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; and such
notification, request and offer of indemnity are hereby declared in every such
case to be conditions precedent to any such action, suit or proceeding by any
Holder of any Security of such series; it being understood and intended that no
one or more of the Holders of Securities of such series shall have any right in
any manner whatsoever by his or their action to enforce any right hereunder,
except in the manner herein provided, and that every action, suit or proceeding
at law or in equity shall be instituted, had and maintained in the manner herein
provided and for the equal and ratable benefit of all Holders of the outstanding
Securities of such series; provided, however, that nothing contained in this
Indenture or in the Securities of such series shall affect or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, and premium, if any, and interest on the Securities of such series
or Coupons appertaining thereto to the respective Holders of such Securities or
Coupons at the respective due dates in such Securities stated, or affect or
impair the right, which is also absolute and unconditional, of such Holders to
institute suit to enforce the payment thereof.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 6.01; or
(b) the failure of the Company to pay any installment of interest on
any Security of such series, when and as the same shall become payable, which
failure shall have continued unremedied for a period of 30 days; or
(c) the failure of the Company to pay the principal of (and premium, if
any, on) any Security of such series, when and as the same shall become payable,
whether at maturity as therein expressed, by call for redemption (otherwise than
pursuant to a sinking fund), by declaration as authorized by this Indenture or
otherwise, whether or not permitted by Article Fourteen; or
(d) the failure of the Company to pay a sinking fund installment, if
any, when and as the same shall become payable by the terms of a Security of
such series, which failure shall have continued unremedied for a period of 30
days, whether or not permitted by Article Fourteen; or
(e) the failure of the Company, subject to the provisions of Section
15.01, to observe and perform any other of the covenants or agreements on the
part of the Company contained in this Indenture (including any indenture
supplemental hereto) (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than that series), which failure shall not have been remedied
to the satisfaction of the Trustee, or without provision deemed by the Trustee
to be adequate for the remedying thereof having been made, for a period of 90
days after written notice shall have been given to the Company by the Trustee or
shall have been given to the Company and the Trustee by Holders of 25% or more
in aggregate principal amount of the Securities of such series then outstanding,
specifying such failure and requiring the Company to remedy the same; or
(f) any other Default provided with respect to Securities of that
series.
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SECTION 6.08. Costs and Attorneys' Fees in Legal Proceedings. All
parties to this Indenture and the Holders of the Securities agree that the court
may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit
or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of
an undertaking to pay the costs of such action, suit or proceeding, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such action, suit or proceeding,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, however, that the provisions of this Section 6.08
shall not apply to any action, suit or proceeding instituted by the Trustee, to
any action, suit or proceeding instituted by any one or more Holders of
Securities holding in the aggregate more than 10% in principal amount of the
Securities or Coupons outstanding, or to any action, suit or proceeding
instituted by any Holder of Securities or Coupons for the enforcement of the
payment of the principal of or premium, if any, or the interest on, any of the
Securities or Coupons, on or after the respective due dates expressed in such
Securities or Coupons.
SECTION 6.09. Remedies Cumulative. Except as provided in the last
sentence of Section 2.06, no remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities of any series or Coupons is intended to
be exclusive of any other remedy or remedies, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No delay or omission of
the Trustee or of any Holder of the Securities of any series or Coupons to
exercise any right or power accruing upon any Default shall impair any such
right or power or shall be construed to be a waiver of any such Default or an
acquiescence therein; and every power and remedy given by this Article Six to
the Trustee and to the Holders, respectively, may be exercised from time to time
and as often as may be deemed expedient by the Trustee or by the Holders, as the
case may be. In case the Trustee or any Holder of Securities or Coupons shall
have proceeded to enforce any right under this Indenture and the proceedings for
the enforcement thereof shall have been discontinued or abandoned because of
waiver or for any other reason or shall have been adjudicated adversely to the
Trustee or to such Holder, then and in every such case the Company, the Trustee
and the Holders shall severally and respectively be restored to their former
positions and rights hereunder and thereafter all rights, remedies and powers of
the Trustee and the Holders shall continue as though no such proceedings had
been instituted, except as to any matters so waived or adjudicated.
SECTION 6.10. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no law had been enacted.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Acts of Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage or a majority in aggregate
principal amount of the Securities or of any series of Securities may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified percentage or majority
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of the Holders of Securities
voting in favor thereof at any meeting of Securityholders duly called and held
in accordance with the provisions of Article Eight, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of
Securityholders.
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SECTION 7.02. Proof of Execution of Instrument and Holding of
Securities. Proof of the execution of any instrument by a Securityholder or his
agent or proxy and proof of the holding by any person of any of the Securities
shall be sufficient if made in the following manner:
The fact and date of the execution by any person of any such instrument
may be proved (a) by the certificate of any notary public or other officer in
any jurisdiction who, by the laws thereof, has power to take acknowledgments or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Registered Securities shall be proved by the register
of such Securities or by a certificate of the registrar thereof.
The principal amount and serial numbers of Bearer Securities held by
any person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as Depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
The fact and date of execution of any such instrument or writing, the
authority of the person executing the same and the principal amount and serial
numbers of Bearer Securities held by the person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. Securities Owned by Company or Other Obligor. In
determining whether the Holders of the requisite principal amount of the
Securities have concurred in any direction, request, waiver or consent under
this Indenture, Securities which are owned by the Company or by any other
obligor on the Securities or by any person directly or indirectly controlling,
or controlled by, or under direct or indirect common control with, the Company
or any such other obligor shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, request, waiver or consent, only Securities which the Trustee knows
are so owned shall be disregarded. Securities so owned which have been pledged
in good faith may be regarded as outstanding for the purposes of this Section
7.03 if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
In determining whether the Holders of the requisite principal amount of
the outstanding Securities have given any direction, request, waiver or consent
under this Indenture, 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 6.02.
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SECTION 7.04. Revocation by Holders of Consents to Action. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities or of any series of Securities specified in
this Indenture in connection with such action, any Holder of a Security which is
shown by the evidence to be included in the Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal office and upon proof of holding as provided in Section 7.02, 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,
irrespective of whether or not any notation in regard thereto is made upon such
Security or any Security issued in exchange or substitution therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings. A meeting of Securityholders may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default, and any
Default or Event of Default arising therefrom, hereunder and its consequences,
or to take any other action authorized to be taken by Securityholders pursuant
to any of the provisions of Article Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 13.02; or
(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 other provision of this
Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Securityholders of all series that may be affected by the
action proposed to be taken, to take any action specified in Section 8.01, to be
held at such time and at such place in the Borough of Manhattan, The City of New
York, or in London, as the Trustee shall determine. Notice of every meeting of
the Securityholders of a series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given in the manner provided in Section 1.02, not less than 20 nor more
than 90 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
Holders of at least 10% in aggregate principal amount of the Securities of a
series then outstanding that may be affected by the action proposed to be taken,
shall have requested the Trustee to call a meeting of Securityholders of such
series, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place in the
Borough of Manhattan or London as they shall determine for such meeting and may
call such meeting to take any action authorized in Section 8.01, by giving
notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a Holder of one or more
Securities of a series affected by the action proposed to be taken at the
meeting or (b) be a person appointed by an instrument in writing as proxy by a
Holder of one or more such Securities. The only persons who shall be entitled to
be present or to speak at any meeting of
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Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Regulations for Meeting. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities 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 Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. Voting. The vote upon any resolution submitted to any
meeting of Securityholders of a series affected by the action proposed to be
taken at the meeting shall be by written ballots on which shall be subscribed
the signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts of the Securities of such
series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 8.02. The record
shall show the principal amounts 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 8.07. No Delay of Rights by Meeting. Nothing contained in this
Article Eight shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any series or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Securityholders of such series under any of the provisions of this
Indenture or of the Securities of such series.
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ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS LISTS
SECTION 9.01. Reports by Trustee. (a) The Trustee shall transmit or
otherwise make available to the Holders of Securities, as hereinafter provided,
on or before May 15, 2002 and on or before May 15 in each year thereafter, a
brief report as of the preceding March 15 as and to the extent required by
Section 313(a) of the Trust Indenture Act of 1939.
(b) The Trustee shall transmit or otherwise make available to the
Holders of Securities, as hereinafter provided, a brief report as and to the
extent required by Section 313(b) of the Trust Indenture Act of 1939.
(c) Each report pursuant to the provisions of this Section 9.01 shall
be transmitted by mail as and to the extent required by Section 313(c) of the
Trust Indenture Act of 1939.
(d) The Trustee shall, at the time of the transmission to the Holders
of Securities of any report pursuant to the provisions of this Section 9.01,
file a copy of such report with each stock exchange upon which the Securities
are listed and also with the Securities and Exchange Commission. The Company
agrees to notify the Trustee when, as and if the Securities become listed on any
stock exchange.
Reports pursuant to this Section shall be transmitted by mail (1) to
all Securityholders of Registered Securities, as their names and addresses
appear in the security register and (2) to such Securityholders of Bearer
Securities as have, within the two years preceding such transmission, filed
their names and addresses with the Trustee for that purpose, and (3) except in
the cases of reports under Section 313(b)(2) of the Trust Indenture Act, to each
Holder of a Security of any series whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
9.03(b).
The Company will reimburse the Trustee for all expenses incurred in the
preparation and transmission of any report pursuant to the provisions of this
Section 9.01 and of Section 9.02.
SECTION 9.02. Reports by Company. (a) The Company will file with the
Trustee, within 30 days after the Company shall be required so to file the same
with the Securities and Exchange Commission, copies of the annual reports and of
the information, documents and other reports which the Company may be required
to file with the Securities and Exchange Commission pursuant to the provisions
of Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (or copies
of such portions of any of the foregoing as the Securities and Exchange
Commission may by rules and regulations prescribe); or, if the Company is not
required to file information, documents or reports pursuant to the provisions of
either of such Sections, then the Company will file with the Trustee and the
Securities and Exchange Commission, in accordance with rules and regulations
prescribed by the Securities and Exchange Commission, such of the supplementary
and periodic information, documents and reports which may be required pursuant
to the provisions of Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities exchange,
as may be prescribed in such rules and regulations.
(b) The Company will file with the Trustee and the Securities and
Exchange Commission, in accordance with rules and regulations prescribed by the
Securities and Exchange 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 by such rules and
regulations.
(c) The Company will transmit to the Holders of Registered Securities,
and make available for inspection at the offices of its agents specified for
such purpose, within 30 days after the filing thereof with the Trustee (unless
some other time shall be fixed by the Securities and Exchange Commission), in
the manner and to the extent provided in subdivision (c) of Section 9.01, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to the provisions of subdivisions (a) and (b) of this Section
9.02 as may be required by rules and regulations prescribed by the Securities
and Exchange Commission.
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SECTION 9.03. Securityholders List. (a) The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee:
(1) semi-annually, within 15 days after each Record Date, but
in any event not less frequently than semi-annually, a list in such
form as the Trustee may reasonably require of the names and addresses
of the Holders of Registered Securities to which such Record Date
applies, as of such Record Date; and
(2) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that so long as the Trustee shall be the Security registrar,
such list shall not be required to be furnished.
(b) The Trustee will preserve, in as current form as is reasonably
practicable, all information as to the names and addresses of Holders of
Securities so furnished or caused to be furnished to it by the Company or
received by it in its capacity as paying agent or Security registrar. The
Trustee may (1) destroy any information furnished to it as provided in
subdivision (a) of this Section 9.03 upon receipt of new similar information so
furnished to it and (2) destroy any information received by it as paying agent
or Security registrar, but not until 45 days after a subsequent interest payment
shall have been made.
(c) Within five business days after receipt by the Trustee of a written
application by any three or more Holders of Securities stating that such Holders
(hereinafter in this subdivision (c) called "such applicants") desire to
communicate with other Holders of Securities with respect to their rights under
this Indenture or under the Securities, and accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, the Trustee will, at
its election, either
(1) afford to such applicants access to all information
furnished to, or received by, and preserved by, the Trustee pursuant to
the provisions of this Section 9.03; or
(2) inform such applicants as to the approximate number of
Holders of Securities according to the most recent information so
furnished to, or received by, and preserved by, the Trustee, and as to
the approximate cost of mailing to such Holders of Securities 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 all Holders of Registered Securities whose names and
addresses are contained in the information so furnished to, or received by, and
preserved by, the Trustee copies 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 such mailing, unless, within five days
after such tender, the Trustee shall mail to such applicants, and file with the
Securities and Exchange 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 or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Securities and Exchange
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of the
objections specified in the written statement so filed, or if, after the entry
of an order sustaining one or more of such objections, the Securities and
Exchange Commission shall find, after notice and opportunity for hearing, that
all objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders of
Securities with
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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.
Each and every Holder of a Security, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor 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 this subdivision (c), 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 this subdivision
(c).
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Acceptance of Trusts Upon Specified Conditions. The
Trustee accepts the trusts created by this Indenture upon the terms and
conditions hereof, including the following, to all of which the parties hereto
and the Holders from time to time of the Securities agree:
(a) The Trustee shall be entitled to reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and such compensation, as well as the reasonable compensation of its
counsel, and all other reasonable expenses, disbursements and advances incurred
or made by the Trustee hereunder, the Company agrees to pay promptly on demand
from time to time as such services shall be rendered and as such expenses shall
be incurred. The Company also agrees to indemnify each of the Trustee and any
predecessor trustee hereunder for, and to hold it harmless against, any loss,
liability or expense incurred without its own negligence or bad faith, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder and the performance of its duties, as well as the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. As
security for the performance of the obligations of the Company under this
subdivision (a), the Trustee shall have a lien therefor on any moneys held by
the Trustee hereunder prior to any rights therein of the Holders of the
Securities. Notwithstanding any provisions of this Indenture to the contrary,
the obligations of the Company to indemnify the Trustee under this Section
10.01(a) shall survive the resignation or removal of the Trustee or any
satisfaction and discharge under Article Eleven.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any duty hereunder either directly or by its agents and attorneys and
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(c) The Trustee shall not be responsible in any manner whatsoever for
the correctness of the recitals contained herein or in the Securities (except
its certificates of authentication thereon), all of which are made by the
Company solely; and the Trustee shall not be responsible or accountable in any
manner whatsoever for or with respect to the validity or execution or
sufficiency of this Indenture or of the Securities (except its certificates of
authentication thereon), and the Trustee makes no representation with respect
thereto. The Trustee shall not be accountable for the use or application by the
Company of any Securities, or the proceeds of any Securities, authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.
(d) The Trustee may consult with counsel, and, to the extent permitted
by Section 10.02, the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered by the Trustee hereunder in good faith and in accordance with
such advice of counsel or Opinion of Counsel.
(e) The Trustee, to the extent permitted by Section 10.02, may rely
upon the certificate of the Secretary or one of the Assistant Secretaries of the
Company as to the adoption of any resolution by the Board
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of Directors or stockholders of the Company, and any request, direction, order
or demand of the Company mentioned herein shall be sufficiently evidenced by,
and whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, offering or
omitting any action hereunder, the Trustee may rely upon, an Officers'
Certificate (unless other evidence in respect thereof be herein specifically
prescribed).
(f) The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 10.06 and 10.09, may otherwise deal with the Company with the same
rights it would have had if it were not a Trustee or such agent.
(g) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
(h) Any action taken by the Trustee pursuant to any provision hereof at
the request or with the consent of any person who at the time is the Holder of
any Security shall be conclusive and binding in respect of such Security upon
all future Holders thereof or of any Security or Securities which may be issued
for or in lieu thereof in whole or in part, whether or not such Security shall
have noted thereon the fact that such request or consent had been made or given.
(i) Subject to the provisions of Section 10.02, the Trustee may rely
and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(j) Subject to the provisions of Section 10.02, the Trustee shall not
be under any obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Holders of the
Securities, pursuant to any provision of this Indenture, unless one or more of
the Holders of the Securities shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred by it therein or thereby.
(k) Subject to the provisions of Section 10.02, 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 its discretion or within the rights or powers
conferred upon it by this Indenture.
(l) Subject to the provisions of the first paragraph of Section 10.02,
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, bond, debenture or other
paper or document.
(m) Subject to the provisions of Section 10.02, the Trustee shall not
be deemed to have knowledge or notice of any Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless the Holders of not
less than 25% of the Outstanding Securities of any series notify the Trustee
thereof.
SECTION 10.02. Duties of Trustee in Case of Default. If one or more of
the Defaults specified in Section 6.07 with respect to the Securities of any
series shall have happened, then, during the continuance thereof, the Trustee
shall, with respect to the Securities of such series, exercise such of the
rights and powers vested in it by this Indenture, and shall 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 his or her own affairs.
None of the provisions of this Indenture shall be construed as
relieving the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that, anything
in this Indenture contained to the contrary notwithstanding,
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(a) unless and until a Default specified in Section 6.07 with respect
to the Securities of any series shall have happened which at the time is
continuing,
(1) the Trustee undertakes to perform such duties and only
such duties with respect to the Securities of that series as are
specifically set out in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee,
whose duties and obligations shall be determined solely by the express
provisions of this Indenture; and
(2) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates
and opinions furnished to it pursuant to the express provisions of this
Indenture; but in the case of any such certificates or opinions which,
by the provisions of this Indenture, are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable to any Holder of Securities or to
any other person for any error of judgment made in good faith by a Responsible
Officer or 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 to any Holder of Securities or to
any other person with respect to any action taken or omitted to be taken by it
in good faith, in accordance with the direction of Security Holders given as
provided in Section 6.06, relating to the time, method and place of conducting
any proceeding for any remedy available to it or exercising any trust or power
conferred upon it by this Indenture.
None of the provisions of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or otherwise to incur any
personal financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 10.03. Notice of Default. Within 90 days after the occurrence
thereof, the Trustee shall give to the Holders of the Securities of a series, as
provided in subdivision (c) of Section 9.01, notice of each Default with respect
to the Securities of such series known to the Trustee, unless such Default shall
have been cured before the giving of such notice (the term "Default" for the
purposes of Section 10.01(m) and this Section 10.03 being hereby defined to be
the events specified in Section 6.07, which are, or after notice or lapse of
time or both would become, Defaults as defined in said Section); but, unless
such Default be the failure to pay the principal of, or premium, if any, or
interest on any of the Securities of such series or Coupons appertaining thereto
when and as the same shall become payable, or to make any sinking fund payment
as to Securities of the same 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 Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities or Coupons.
SECTION 10.04. Resignation of Trustee. The Trustee, or any successor to
it hereafter appointed, may at any time resign and be discharged of the trusts
hereby created with respect to any one or more or all series of Securities by
giving to the Company notice in writing and by mailing notice thereof to the
Holders of Securities of such series at their addresses as the same shall then
appear in the register of the Company and, if Securities of such series are
issuable as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each place of payment for the Securities of such series
located outside the United States. Such resignation shall take effect upon the
appointment of a successor Trustee and the acceptance of such appointment by
such successor Trustee. Any Trustee hereunder may be removed with respect to any
series of Securities at any time by the filing with such Trustee and the
delivery to the Company of an
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instrument or instruments in writing signed by the Holders of a majority in
principal amount of the Securities of such series then outstanding, specifying
such removal and the date when it shall become effective.
Upon its resignation or removal, any Trustee shall be entitled to the
payment of reasonable compensation for the services rendered hereunder by such
Trustee and to the payment of all reasonable expenses incurred hereunder and all
moneys then due to it hereunder. The Trustee's rights to indemnification
provided in Section 10.01(a) shall survive its resignation or removal.
SECTION 10.05. Qualifications of Trustee. There shall at all times be a
Trustee under this Indenture, and such Trustee shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State, in good standing and having an office in the Borough of
Manhattan, The City of New York, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authority and which has a combined capital and surplus of not less than
$25,000,000. For the purposes of this Section 10.05, the combined capital and
surplus of any such Trustee shall be deemed to be the combined capital and
surplus as set forth in the most recent report of its condition published by
such Trustee, provided that such reports are published at least annually,
pursuant to law or to the requirements of a Federal or State supervising or
examining authority. If such Trustee or any successor shall at any time cease to
have the qualifications prescribed in this Section 10.05, it shall promptly
resign as Trustee hereunder. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
shall serve as trustee upon the Securities.
SECTION 10.06. Disqualification of Trustee. The Trustee shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act of 1939
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act of 1939 with respect to the Securities of any series, there shall
be excluded for purposes of the conflicting interest provisions of such Section
310(b) the Securities of every other series issued under this Indenture. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act of 1939.
SECTION 10.07. Appointment of Trustee. In case at any time the Trustee
shall resign, or shall be removed (unless the Trustee shall be removed as
provided in Section 310(b)(iii) of the Trust Indenture Act of 1939, in which
event the vacancy shall be filled as provided in said Section), or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or if a
receiver of the Trustee or of its property shall be appointed, or if 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 with
respect to the Securities of one or more series, a successor Trustee with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any series) may be appointed by the Holders of
a majority in principal amount of the Securities of that or those series then
Outstanding, by an instrument or instruments in writing signed in duplicate by
such Holders and filed, one original thereof with the Company and the other with
the successor Trustee; but, until a successor Trustee shall have been so
appointed by the Holders of Securities of that or those series as herein
authorized, the Company by a resolution of its Board of Directors, or, in case
all or substantially all the assets of the Company shall be in the possession of
one or more custodians or receivers lawfully appointed, or of trustees in
bankruptcy or reorganization proceedings (including a trustee or trustees
appointed under the provisions of the Federal bankruptcy laws, as now or
hereafter constituted), or of assignees for the benefit of creditors, such
receivers, custodians, trustees or assignees, as the case may be, by an
instrument in writing, shall appoint a successor Trustee with respect to the
Securities of such series. Subject to the provisions of Sections 10.04, 10.05
and 10.06, upon the appointment as aforesaid of a successor Trustee with respect
to the Securities of any series, the Trustee with respect to the Securities of
such series shall cease to be Trustee hereunder. After any such appointment
other than by the Holders of Securities of that or those series the person
making such appoint ment shall forthwith cause notice thereof to be mailed to
the Holders of Securities of such series at their addresses as the same shall
then appear on the register of the Company; but any successor Trustee with
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respect to the Securities of such series so appointed shall, immediately and
without further act, be superseded by a successor Trustee appointed by the
Holders of Securities of such series in the manner above prescribed, if such
appointment be made prior to the expiration of one year from the date of the
mailing of such notice by the Company, or by such receivers, trustees or
assignees.
If any Trustee with respect to the Securities of one or more series
shall resign because of conflict of interest as provided in Section 310(b)(i) of
the Trust Indenture Act of 1939 and a successor Trustee shall not have been
appointed by the Company or by the Holders of the Securities of such series or,
if any successor Trustee so appointed shall not have accepted its appointment
within 30 days after such appointment shall have been made, the resigning
Trustee may apply to any court of competent jurisdiction for the appointment of
a successor Trustee. If in any other case a successor Trustee shall not be
appointed pursuant to the foregoing provisions of this Section 10.07 within
three months after such appointment might have been made hereunder, the Holder
of any Security of the applicable series or any retiring Trustee may apply to
any court of competent jurisdiction to appoint a successor Trustee. Such court
may thereupon, in any such case, after such notice, if any, as such court may
deem proper and prescribe, appoint a successor Trustee.
Any successor Trustee appointed hereunder with respect to the
Securities of one or more series shall execute, acknowledge and deliver to its
predecessor Trustee and to the Company, or to the receivers, trustees, assignees
or court appointing it, as the case may be, an instrument accepting such
appointment hereunder, and thereupon such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations with respect to such series
of such predecessor Trustee with like effect as if originally named as Trustee
hereunder, and such predecessor Trustee, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to pay over, and
such successor Trustee shall be entitled to receive, all moneys and properties
held by such predecessor Trustee as Trustee hereunder. Nevertheless, on the
written request of the Company or of the successor Trustee or of the Holders of
at least 10% in principal amount of the Securities of such series then
outstanding, such predecessor Trustee, upon payment of its said charges and
disbursements, shall execute and deliver an instrument transferring to such
successor Trustee upon the trusts herein expressed all the rights, powers and
trusts of such predecessor Trustee and shall assign, transfer and deliver to the
successor Trustee all moneys and properties held by such predecessor Trustee;
and, upon request of any such successor Trustee, the Company shall make,
execute, acknowledge and deliver any and all instruments in writing for more
fully and effectually vesting in and confirming to such successor Trustee all
such authority, rights, powers, trusts, immunities, duties and obligations.
SECTION 10.08. Merger, Conversion or Consolidation of Trustee;
Successor Trustee. Any corporation into which the Trustee or any successor to it
in the trusts created by this Indenture shall be merged or converted, or any
corporation with which it or any successor to it shall be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any corporation to
which the Trustee or any successor to it shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Trustee, shall be the
successor Trustee under this Indenture without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case at
the time such successor to the Trustee shall succeed to the trusts created by
this Indenture with respect to one or more series of Securities, any of such
Securities 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 shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 10.09. Trustee as Creditor of 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
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provisions of the Trust Indenture Act of 1939 regarding the collection of claims
against the Company (or any such other obligor).
SECTION 10.10. Trustee May Rely on Officer's Certificate. Subject to
Section 10.02, and subject to the provisions of Section 15.03 with respect to
the certificates required thereby, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering 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 with respect thereto delivered to the Trustee, and such
Officers' Certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
shall upon request of the Company cease to be of further effect with respect to
Securities of any series (except as to any surviving rights of registration of
transfer or exchange of Securities of such series and replacement of lost,
stolen or mutilated Securities of such series herein expressly provided for),
and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.06, (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 5.03, (iii) Coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has not been waived
as provided in Section 2.05, and (iv) Coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
4.02) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year,
or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities and Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
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(b) the Company has paid or cause to be paid all other sums payable
hereunder with respect to such series by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 10.01(a) and, if money
shall have been deposited with the Trustee pursuant to subclause (2) of clause
(a) of this Section, the obligations of the Trustee under Sections 5.03 and
11.02 shall survive.
SECTION 11.02. Defeasance and Discharge. The following provisions shall
apply to the Securities of each series unless specifically otherwise provided in
a Board Resolution, Officers' Certificate or indenture supplemental hereto
provided pursuant to Section 2.02. In addition to discharge of this Indenture
pursuant to Sections 11.01 and 11.03, in the case of any series of Securities
with respect to which an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, as certified
pursuant to subparagraph (a) of Section 11.04 can be determined at the time of
making the deposit referred to in such subparagraph (a), the Company shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such series as provided in this Section on and after the date the conditions
set forth in Section 11.04 are satisfied, and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of Securities
of such series, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of Securities of such
series to receive, solely from the trust fund described in subparagraph (a) of
Section 11.04, payments of principal thereof and interest, if any, thereon upon
the original stated due dates therefor (but not upon acceleration) and remaining
rights of the Holders of Securities of each series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) this Section 11.02 and (vi) the rights of the Holders
of Securities of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them)
(hereinafter called "Defeasance"), and the Trustee at the cost and expense of
the Company, shall execute proper instruments acknowledging the same.
SECTION 11.03. Covenant Defeasance. In the case of any series of
Securities with respect to which an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest, as certified
pursuant to subparagraph (a) of Section 11.04 can be determined at the time of
making the deposit referred to in such subparagraph (a), (i) the Company shall
be released from its obligations under any covenants or agreements specified in
or pursuant to this Indenture (except as to (A) rights of registration of
transfer and exchange of Securities of such series, (B) substitution of
mutilated, defaced, destroyed, lost or stolen Securities of such series, (C)
rights of Holders of Securities of such series to receive, from the Company
pursuant to Section 5.01, payments of principal thereof and interest, if any,
thereon upon the original stated due dates therefor (but not upon acceleration),
and mandatory sinking fund payments, if any, (D) the rights, obligations, duties
and immunities of the Trustee hereunder and (E) the rights of Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, and (ii) the
occurrence of any event specified in Section 6.07(e) (with respect to any of the
covenants or agreements specified in or pursuant to this Indenture) and 6.01 (c)
or 6.07(f) shall be deemed not to be or result in a Default or an Event of
Default, as applicable, in each case with respect to the Outstanding Securities
of such series on or after the date the conditions set forth in Section 11.04
are satisfied (hereinafter called "Covenant Defeasance"), and the Trustee, at
the cost of the Company, shall execute proper instruments acknowledging the
same. For this purpose, such Covenant Defeasance means that the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant or agreement (to the extent so
specified in the case of Section 6.07(e)), whether directly or indirectly by
reason of any reference elsewhere herein to any such covenant or agreement or by
reason of any reference in any
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such covenant or agreement to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Sections 11.02 and
11.03 to the Outstanding Securities of any series:
(a) with reference to Section 11.02 or 11.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee as
funds in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series (i) cash in an amount,
or (ii) U.S. Government Obligations maturing as to principal and interest, if
any, at such times and in such amounts as will insure the availability of cash,
or (iii) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge (A) the principal of and interest, if any, on all Securities of
such series on each date that such principal or interest, if any, is due and
payable, and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of this Indenture and
the Securities of such series;
(b) in the case of Defeasance under Section 11.02, the Company has
delivered to the Trustee an Opinion of Counsel based on the fact that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, Defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
Defeasance and discharge had not occurred;
(c) in the case of Covenant Defeasance under Section 11.03, the Company
has delivered to the Trustee an Opinion of Counsel to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such series will
not recognize income, gain or loss for United States federal income tax purposes
as a result of such deposit and Covenant Defeasance and will be subject to the
United States federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and Covenant
Defeasance had not occurred;
(d) no Default or event which with notice or lapse of time or both
would become a Default shall have occurred or be continuing on the date of the
deposit referred to in subparagraph (a);
(e) such Defeasance or Covenant Defeasance will not result in a breach
or violation of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound; and
(f) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
SECTION 11.05. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 5.03, all money and U.S. Government Obligations
deposited with the Trustee pursuant to Section 11.04 shall be held in trust, and
such money and all money from such U.S. Government Obligations shall be applied
by it, in accordance with the provisions of the Securities, the Coupons, if any,
and this Indenture, to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent) as the Trustee may
determine, to the persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money and U.S. Government Obligations
has been deposited with the Trustee.
SECTION 11.06. Indemnity for U.S. Government Obligations. The Company
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Govern ment Obligations deposited pursuant to
Section 11.04 or the principal or interest received in respect of such
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obligations other than any such tax, fee or other charge that by law is for the
account of the Holders of Outstanding Securities.
SECTION 11.07. Deposits of Non-U.S. Currencies. Notwithstanding the
foregoing provisions of this Article Eleven, if the Securities of any series are
payable in a coin or currency or currency unit other than such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public or private debts, the coin or currency or currency unit or the
nature of the government obligations to be deposited with the Trustee under the
foregoing provisions of this Article Eleven shall be as set forth in the
Officers' Certificate or established in the supplemental indenture under which
the Securities of such series are issued.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Liability Solely Corporate. No recourse shall be had for
the payment of the principal of, or the premium, if any, or interest on, any
Security or Coupon or for any claim based thereon or otherwise in respect
thereof or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities,
and related Coupons, if any, are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, because of the incurring of
the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants, promises or agreements contained in this Indenture or in
any of the Securities or Coupons or to be implied herefrom or therefrom, and
that all liability, if any, of that character against every such incorporator,
stockholder, officer and director is, by the acceptance of the Securities and as
a condition of, and as part of the consideration for, the execution of this
Indenture and the issue of the Securities expressly waived and released.
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Supplemental Indentures Without Consent of Holders. The
Company (when authorized by resolution of its Board of Directors) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any one
or more of or all the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by any such successor of the
covenants and obligations of the Company contained therein and in the
Securities, pursuant to Section 15.01;
(b) to add to the covenants and agreements of the Company to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Defaults, in each case for the
protection or benefit of the Holders of all or any series of Securities or
Coupons (and if such covenants, agreements and Defaults are to be for the
benefit of less than all series of Securities or Coupons, stating that such
covenants, agreements and Defaults are expressly being included for the benefit
of such series as shall be identified therein); or herein conferred upon the
Company;
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(c) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Security of any series Outstanding created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
(d) to secure the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions,
limitations or restrictions on the authorized amount, terms or purpose of issue,
authentication or delivery of the Securities of any series, as herein set forth
or other conditions, limitations or restrictions thereafter to be observed.
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
10.07;
(g) to cure any ambiguity, to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be defective
or inconsistent with any other provision contained herein, or in any
supplemental indenture, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not materially adversely
affect the interests of the Holders of Securities or any related Coupons;
(h) to add any additional Default; or
(i) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related Coupons in
any material respect.
Subject to the provisions of Section 13.03, the Trustee is authorized
to join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
13.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 13.02.
SECTION 13.02. Supplemental Indentures With Consent of Holders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture,
or of any supplemental indenture, or of modifying in any manner the rights of
the Holders of Securities of such series and any related Coupons to be affected
or to waive any default or Default under the Indenture; provided that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
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(a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (including any change in the floating or
adjustment rate provision pursuant to which such rate is determined that would
reduce that rate for any period) or any premium payable upon the redemption
payable upon the redemption thereof, or change any place of payment where, or
the coin or currency in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date) or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Securityholders;
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults, and any Defaults or Events of Default arising therefrom, hereunder and
their consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section or Section 6.06,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby; provided that this
clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in this
Section or the deletion of this proviso, in accordance with the requirements of
Sections 10.07 and 13.01(i).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of Securityholders under this
Section 13.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such act shall approved the substance
thereof.
The Company may set a record date for the purpose of determining the
identity of the Holders of each series of Securities entitled to give a written
consent or waive compliance by the Company as authorized or permitted by this
Section. Such record date shall be not more than 30 days prior to the first
solicitation of such consent or waiver or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
312 of the Trust Indenture Act of 1939.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 13.02, the
Company shall mail a notice to the Holders of Registered Securities at their
addresses as the same shall appear in the register of the Company and, if
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each place of payment
for the Securities of such series located outside the United States, setting
forth in general terms the substance of such supplemental indenture. Any failure
of the 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.
SECTION 13.03. Execution of Supplemental Indenture. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereof of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
10.02) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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SECTION 13.04. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article Thirteen,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of all of the Securities
or of the Securities of any series affected, as the case may be, 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 13.05. Reference in Securities to Supplemental Indenture.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article Thirteen may bear a
notation in a form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, 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 then outstanding in equal
aggregate principal amounts, and such exchange shall be made without cost to the
Holders of the Securities.
SECTION 13.06. Conformity With Trust Indenture Act. Every supplemental
indenture executed pursuant to the provisions of this Article Thirteen shall
conform to the requirements of the Trust Indenture Act of 1939 as then in
effect.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.01. Securities Subordinate to Senior Indebtedness. The
Company covenants and agrees that, except to the extent otherwise provided for
pursuant to Section 2.02, the indebtedness evidenced by the Securities of each
series or Coupons appertaining thereto is subordinate and junior in right of
payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities or Coupons, by his acceptance thereof, likewise covenants
and agrees to the subordination herein provided and shall be bound by the
provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of these subordination provisions irrespective of
any amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any
principal of, or premium, if any, or interest on any Senior Indebtedness when
the same becomes due and payable after any applicable grace period, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise, then,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities,
by set-off or otherwise) shall be made or agreed to be made on account of the
principal of, or premium, if any, or interest on any of the Securities or
related Coupons, or in respect of any redemption, retirement or other
acquisition of any of the Securities, except that Securityholders may receive
and retain (i) securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in these subordination provisions with respect
to the indebtedness evidenced by the Securities or Coupons, to the payment of
all Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any plan of reorganization or readjustment and (ii)
payments made from a defeasance trust created pursuant to Article Eleven.
In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property;
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(b) any proceeding for the liquidation, dissolution or other winding up
of the Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings;
(c) any assignment by the Company for the benefit of creditors; or
(d) any other marshaling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities or Coupons on account thereof
(except as otherwise permitted by the next succeeding sentence). Any payment or
distribution, whether in cash, securities or other property (other than (i)
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities or Coupons, to the payment of all
Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any plan of reorganization or readjustment and (ii)
payments made from a defeasance trust created pursuant to Article Eleven), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Securities of any series or Coupons appertaining
thereto shall be paid or delivered directly to the Holders of Senior
Indebtedness in accordance with the priorities then existing among such Holders
until all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character on any Security, whether in cash, securities or
other property (other than (i) securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities or
Coupons, to the payment of all Senior Indebtedness at the time outstanding and
to any securities issued in respect thereof under any such plan of
reorganization or readjustment and (ii) payments made from a defeasance trust
created pursuant to Article Eleven), shall be received by the Trustee or any
Holder of Securities or Coupons in contravention of any of the terms hereof such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered or transferred to, the Holders of the
Senior Indebtedness at the time outstanding in accordance with the priorities
then existing among such Holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
of Securities to endorse or assign any such payment, distribution or security,
each Holder of Senior Indebted ness is hereby irrevocably authorized to endorse
or assign the same.
No present or future Holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the Holders of
Securities of each series, the obligation of the Company to pay such Holders of
Securities the principal of and premium, if any, and interest on such Securities
or prevent the Trustee or the Holder of Securities from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon the
occurrence of a Default hereunder, all subject to the rights of the Holders of
the Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders of Securities or Coupons.
Senior Indebtedness shall not be deemed to have been paid in full
unless the Holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities or
Coupons shall be subrogated to all rights of any Holders of Senior Indebtedness
to receive any further payments or distributions applicable to the Senior
Indebtedness unless the indebtedness evidenced by the Securities of such series
shall have been paid in full, and such payments or distributions received by
such Holders of Securities or Coupons, by reason of such subrogation, of cash,
securities or other property which otherwise
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would be paid or distributed to the Holders of Senior Indebtedness, shall, as
between the Company and its creditors other than the Holders of Senior
Indebtedness, on the one hand, and such Holders of Securities, on the other
hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such series.
The Trustee and Holders of Securities will take such action (including,
without limitation, the delivery of this Indenture to an agent for the Holders
of Senior Indebtedness or consent to the filing of a financing statement with
respect thereto) as may, in the opinion of counsel designated by the Holders of
a majority in principal amount of the Senior Indebtedness at the time
outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
SECTION 14.02. Reliance On Certificate of Liquidating Agent; Further
Evidence of Ownership of Senior Indebtedness. Upon any payment or distribution
of assets of the Company referred to in this Article Fourteen, the Trustee and
the Holders of Securities or Coupons shall be entitled to rely upon an order or
decree made by any court of competent jurisdiction in which such dissolution or
winding up or liquidation or reorganization or arrangement proceedings are
pending or upon a certificate of the trustee in bankruptcy, receiver, assignee
for the benefit of creditors or other persons making such payment or
distribution, delivered to the Trustee or to the Holders of Securities or
Coupons, for the purpose of ascertaining the persons entitled to participate in
such distribution, the Holders of Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Fourteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other person, the Trustee shall be entitled to rely upon a written notice by a
person representing himself to be the Holder of Senior Indebtedness (or a
trustee or representative on behalf of such Holder) as evidence that such person
is a Holder of Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any person as a Holder of Senior
Indebtedness to participate in any payments or distributions pursuant to this
Article Fourteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such person under this Article Fourteen, and if such evidence is
not furnished, the Trustee may refuse to offer any payment to such person
pending judicial determination as to the right of such person to receive such
payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to
the Holders of Senior Indebtedness.
SECTION 14.03. Payment Permitted If No Default. Nothing contained in
this Article Fourteen or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any
dissolution, winding up, liquidation or reorganization proceedings referred to
in, or under the conditions described in, Section 14.01, from making payments at
any time of the principal of or premium, if any, or interest on the Securities
or Coupons appertaining thereto, or (b) the application by the Trustee or any
paying agent of any monies deposited with it hereunder to payments of the
principal of or premium, if any, or interest on the Securities or Coupons
appertaining thereto if, at the time of such deposit, the Trustee or such paying
agent, as the case may be, did not have the written notice provided for in
Section 14.04 of any event prohibiting the making of such deposit, or if, at the
time of such deposit (whether or not in trust) by the Company with the Trustee
or any paying agent (other than the Company) such payment would not have been
prohibited by the provisions of this Article, and the Trustee or any paying
agent shall not be affected by any notice to the contrary received by it on or
after such date.
SECTION 14.04. Trustee Not Charged With Knowledge of Certain Facts.
Anything in this Article Fourteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies hereunder to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 14.01 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the Holders or Holders, or their representa-
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53
tives, of Senior Indebtedness who shall have been certified by the Company or
otherwise established to the reasonable satisfaction of the Trustee to be such
Holder or Holders or representa tives or from any trustee under any indenture
pursuant to which such Senior Indebtedness shall be outstand ing; provided that,
if prior to the third business day preceding the date upon which by the terms
hereof any monies become payable hereunder (including, without limitation, the
payment of either the principal of or premium, if any, or interest on any
Security), or in the event of the execution of an instrument pursuant to Section
11.01 acknowledging satisfaction and discharge of this Indenture, then if prior
to the second business day preceding the date of such execution, the Trustee or
any paying agent shall not have received with respect to such monies the
Officers' Certificate or notice provided for in this Section 14.04, then,
anything herein contained to the contrary notwithstanding, the Trustee or such
paying agent shall have full power and authority to receive such monies and
apply the same to the purpose for which they were received and shall not be
affected by any notice to the contrary which may be received by it on or after
such date. The Company shall give prompt written notice to the Trustee and to
the paying agent of any facts known to the Company which would prohibit the
payment of monies to or by the Trustee or any paying agent.
SECTION 14.05. Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder of Securities and Holders of Senior
Indebtedness, as provided in this Article Fourteen, and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 14.06. Trustee's Rights Regarding Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Fourteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other Holder of Senior Indebtedness; provided that
nothing in this Indenture shall deprive the Trustee of any of its rights as such
Holder; and provided further that nothing in this Article shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 10.01(a).
SECTION 14.07. Articles Applicable to Paying Agent. In case at any time
any paying agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article
Fourteen shall in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning as
fully for all intents and purposes as if the paying agent were named in this
Article Fourteen in addition to or in place of the Trustee; provided, however,
that Sections 14.04 and 14.06 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as paying agent.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. Consolidation, Merger, Sale or Lease. The Company will
not consolidate with any other corporation or accept a merger of any other
corporation into the Company or permit the Company to be merged into any other
corporation, or sell other than for cash or lease all or substantially all its
assets to another corporation, or purchase all or substantially all the assets
of another corporation, unless (i) either the Company shall be the continuing
corporation, or the successor, transferee or lessee corporation (if other than
the Company) shall expressly assume, by indenture supplemental hereto
satisfactory to the Trustee, executed and delivered by such corporation prior to
or simultaneously with such consolidation, merger, sale or lease, the due and
punctual payment of the principal of and interest and premium, if any, on all
the Securities, according to their tenor, and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, and (ii) immediately after such
consolidation, merger, sale, lease or purchase, no Default, and no event which,
after notice or lapse of time or both, would become a Default, shall have
happened and be continuing in the performance by the Company or the successor,
transferee or lessee corporation (if other than the Company) of any covenant or
condition of this Indenture. A purchase by a Subsidiary of all or substantially
all of the assets of another corporation shall not be deemed to be a purchase of
such assets by the Company.
Anything in this Indenture to the contrary notwithstanding, the Company
or any Subsidiary may fail or omit in any particular instance to comply with a
covenant or condition set forth in this Section 15.01 with
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54
respect to any series of Securities if the Company shall have obtained and filed
with the Trustee, prior to the time of such failure or omission, evidence (as
provided in Article Seven) of the consent of the Holders of at least a majority
in aggregate principal amount of the Securities of such series at the time
outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect any obligation not waived by the terms of such waiver or
impair any right consequent thereon. Until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such covenant or conditions shall remain in full force and effect.
SECTION 15.02. Rights Under Indenture Limited to Parties thereto and
Holders. Nothing in this Indenture expressed and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or to give to, any person or corporation other than the parties hereto and
their successors and the Holders of the Securities any right, remedy or claim
under or by reason of this Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all covenants, conditions, stipulations,
promises and agreements in this Indenture contained shall be for the sole and
exclusive benefit of the parties hereto and their successors and of the Holders
of the Securities.
SECTION 15.03. Evidence of Compliance With Conditions Precedent. As
evidence of compliance with the conditions precedent provided for in this
Indenture (including any covenants compliance with which constitutes a condition
precedent) which relate to the authentication and delivery of any Securities, to
the satisfaction and discharge of this Indenture or to any other action to be
taken by the Trustee at the request or upon the application of the Company, the
Company will furnish to the Trustee an Officers' Certificate, stating that such
conditions precedent have been complied with and an Opinion of Counsel stating
that in the opinion of such Counsel such conditions precedent have been complied
with.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include (1) a statement that
the person making such certificate or opinion has read such condition or
covenant; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of 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 condition or
covenant has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the Holders of a majority in principal amount of the Securities
then outstanding; provided that, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses or
liabilities. Any further evidence which may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense; and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by the Trustee, shall be repaid by the Company, upon
demand, with interest at the lowest rate born by the Securities of any series
but in no event less than 5%, and, until such repayment, shall be secured by a
lien on any moneys held by the Trustee hereunder prior to any rights therein of
the Holders of Securities.
SECTION 15.04. Cancellation of Securities. All Securities and Coupons
paid, redeemed, exchanged, surrendered for registration of transfer or retired
pursuant to a sinking fund or otherwise shall, if surrendered to the Company or
to any paying agent, be delivered to the Trustee for cancellation and shall be
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55
cancelled by it or, if surrendered to the Trustee, shall be cancelled by it,
and, except as otherwise provided in Sections 2.05, 2.06, 2.07, 2.08, 4.02 and
13.05, no Securities shall be issued under the Indenture in lieu thereof. The
Trustee shall make appropriate notations in its records in respect of all such
Securities and may, but shall not be obligated to, destroy such Securities. If
the Trustee shall destroy any such Securities or Coupons it shall deliver a
certificate of such destruction to the Company. If the Company shall acquire any
of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation.
SECTION 15.05. Conflict with Trust Indenture Act. If any provision of
this Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of the
provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such required provision shall control.
SECTION 15.06. Acts of Board Committees. Whenever action is required by
this Indenture by the Board of Directors of the Company and there is at the time
constituted a committee of the Board of Directors duly authorized to take such
action, or a committee of officers or other representatives of the Company so
authorized by the Board of Directors, such action by such a committee shall be
deemed to be the action of the Board of Directors and shall be sufficient for
all purposes of this Indenture where action by the Board of Directors is
specified.
SECTION 15.07. Notices. Any notice or demand authorized by this
Indenture to be given to the Company shall be sufficiently given for all
purposes if it shall be sent by registered mail to the Company addressed to it
at 399 Park Avenue, New York, New York 10043 to the attention of its Deputy
General Counsel or at such other address, as may have been furnished in writing
to the Trustee by the Company. Any notice, direction, request or demand to or
upon the Trustee shall be sufficiently given, for all purposes, if it is given
or made in writing to the Principal Office of the Trustee. Any notice required
or permitted to be given to Securityholders shall be sufficiently given as
provided in Section 1.02.
SECTION 15.08. Payments Due on Non-Business Days. In any case where the
date of maturity of interest on or principal of the Securities or the date fixed
for redemption of any Securities shall not be a business day, then payment of
interest, principal and premium, if any, may be made on the next succeeding
business day with the same force and effect as if made on the date of maturity
and no interest shall accrue for the period after such date.
SECTION 15.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 15.10. Governing Law. This Indenture and each Security shall be
deemed to be a contract made under the law of the State of New York, and for all
purposes shall be construed in accordance with the law of said State.
SECTION 15.11. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal, or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 15.12. Legend. The Securities are not savings accounts,
deposits or other obligations of any insured depositary institution or other
subsidiary of the Company and are not insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
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56
IN WITNESS WHEREOF, CITIGROUP INC. has caused this Indenture to be
executed in its corporate name by one of its officers thereunto duly authorized,
and its corporate seal to be hereunto affixed and to be attested by its
Secretary or one of its Assistant Secretaries, and BANK ONE TRUST COMPANY, N.A.
has caused this Indenture to be executed in its corporate name by one of its
officers thereunto duly authorized, and its corporate seal to be hereunto
affixed and to be attested by one of its authorized officers, all as of
________, 2001.
CITIGROUP INC.
By:
------------------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
---------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
By:
-------------------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
---------------------------------------
Name:
Title:
57
STATE OF NEW YORK.)
:ss.:
COUNTY OF NEW YORK)
On the ___ day of ______, in the year 2001, before me personally came
[NAME], to me known, who, being by me duly sworn, did depose and say that he
resides at [ADDRESS, CITY, STATE, ZIP CODE]; that he is a(n) [TITLE] of
CITIGROUP INC., one of the corporations described in and which executed the
foregoing instrument, that he knows the seal of said corporation, that the seal
affixed to said instrument bearing the corporate name of said corporation is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
By:
--------------------------------------
[NOTARIAL SEAL]
STATE OF NEW YORK.)
:ss.:
COUNTY OF NEW YORK)
On the ___ day of _______, in the year 2001, before me personally came
[NAME], to me known, who, being by me duly sworn, did depose and say that she
resides at [ADDRESS, CITY, STATE, ZIP CODE]; that she is a(n) [TITLE] of BANK
ONE TRUST COMPANY, N.A., one of the corporations described in and which executed
the foregoing instrument, that she knows the seal of said corporation, that the
seal affixed to said instrument bearing the corporate name of said corporation
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that she signed her name thereto by like
authority.
By:
-------------------------------------
[NOTARIAL SEAL]
58
EXHIBIT A
FORM OF ACCOUNTHOLDER'S CERTIFICATION
CITIGROUP INC.
(incorporated with limited liability under
the laws of the State of Delaware, United States of America)
[CURRENCY][AMOUNT]
[TITLE OF NOTES]
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (a) are owned by
persons that are not (i) citizens or residents of the United States, (ii)
corporations, partnerships or other entities created or organized in or under
the laws of the United States, (iii) estates if the income of such estates falls
within the federal income tax jurisdiction of the United States regardless of
the source of such income, or (iv) trusts if a United States court is able to
exercise primary supervision over their administration and one or more United
States persons have the authority to control all of their substantial decisions
("UNITED STATES PERSONS"), (b) are owned by United States person(s) that (i) are
foreign branches of a United States financial institution (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("FINANCIAL INSTITUTIONS")
purchasing for their own account or for resale, or (ii) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (i) or (ii), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the issuer or the issuer's agent that, for the benefit of the Issuer and
the Issuer's agent, it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (c) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163- 5(c)(2)(i)(D)(7)), and in
addition if the owner of the Securities is a United States or foreign financial
institution described in clause (c) (whether or not also described in clause (a)
or (b)) this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
[If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended (the "ACT"), then this
is also to certify that, except as set forth below, the Securities are
beneficially owned by (1) non-U.S. person(s) or (2) U.S. person(s) who purchased
the Securities in transactions which did not require registration under the Act.
As used in this paragraph the term "U.S. PERSON" has the meaning given to it by
Regulation S under the Act.]
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
your for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to [currency] [amount] of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
This certificate is intended to comply with U.S. Treasury Regulation Section
1.163-5(c)(2)(i)(D) and shall be interpreted and retained in accordance
therewith.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated: [ ]
[NAME OF ACCOUNT HOLDER]
AS, OR AS AGENT FOR,
THE BENEFICIAL OWNER(S) OF THE SECURITIES
TO WHICH THIS CERTIFICATE RELATES.
By:
---------------------------------------
Authorized signatory
A-1
59
EXHIBIT B
FORM OF EUROCLEAR/CLEARSTREAM BANKING CERTIFICATION
CITIGROUP INC.
(incorporated with limited liability under
the laws of the State of Delaware, United States of America)
[CURRENCY] [AMOUNT]
[TITLE OF NOTES]
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "MEMBER ORGANIZATIONS") substantially to the effect
set forth in the temporary global note issued in respect of the securities, as
of the date hereof, [currency] [amount] principal amount of the above-captioned
Securities (a) is owned by persons that are not (i) citizens or residents of the
United States, (ii) corporations, partnerships or other entities created or
organized in or under the laws of the United States, (iii) estates if the income
of such estates falls within the federal income tax jurisdiction of the United
States regardless of the source of such income, or (iv) trusts if a United
States court is able to exercise primary supervision over their administration
and one or more United States persons have the authority to control all of their
substantial decisions ("UNITED STATES PERSONS"), (b) is owned by United States
persons that (i) are foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("FINANCIAL
INSTITUTIONS") purchasing for their own account or for resale, or (ii) acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (i) or (ii), each such United States
financial institution) has agreed, on its own behalf or through its agent, that
we may advise the Issuer or the Issuer's agent that, for the benefit of the
Issuer and the Issuer's agent, it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code or 1986, as amended, and
the regulations thereunder), or (c) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described in
clause (c) (whether or not also described in clause (a) or (b)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
[If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended (the "ACT"), then this
is also to certify with respect to the principal amount of Securities set forth
above that, except as set forth below, we have received in writing, by tested
telex or by electronic transmission, from our Member Organizations entitled to a
portion of such principal amount, certifications with respect to such portion
substantially to the effect set forth in the temporary global note issued in
respect of the Securities.]
We further certify (1) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global security excepted in such certifications and (2)
that as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interests) are no longer true and cannot be relied upon as of the date hereof.
This certificate is intended to comply with U.S. Treasury Regulation Section
1.163-5(c)(2)(i)(D) and shall be interpreted and retained in accordance
therewith.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated [ ]
EUROCLEAR BANK S.A. / N.V.
AS OPERATOR OF THE EUROCLEAR SYSTEM
OR
CLEARSTREAM BANKING S.A.
By:
-----------------------------------
Authorised signatory
B-1
60
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM BANKING S.A. TO OBTAIN INTEREST
CITIGROUP INC.
(incorporated with limited liability under
the laws of the State of Delaware, United States of America)
[CURRENCY] [AMOUNT]
[TITLE OF NOTES]
This is to certify that interest payable on the Interest Payment Date[s] on
[Insert date(s)] will be paid with respect to _________ principal amount of the
above-captioned Securities with respect to which we have received from the
persons appearing in our records as being entitled to interest payable on such
date (our "QUALIFIED ACCOUNT HOLDERS") certificates substantially in the form
set out in Exhibit A to the Indenture relating to the above- captioned
Securities that such Securities (a) are owned by a person (other than a
financial institution for purposes of resale during the restricted period) who
is not a United States person; (b) are owned by a United States person (other
than a financial institution for purposes of resale during the restricted
period) who is (i) a foreign branch of a United States financial institution or
(ii) a United States person who acquired such Securities through the foreign
branch of a United States financial institution and who for purposes of this
certification holds such Securities through such financial institution of the
date hereof and, in either case, such United States financial institution has
agreed, for the benefit of the Issuer and the Issuer's agent, to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as from time to time amended, and the regulations thereunder; or (c) are
owned by a financial institution for purposes of resale during the restricted
period and such financial institution has certified that it has not acquired
such Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
To the extent that we have knowledge that any of such certificates is false and
to the extent that we have not received with respect to any Securities such
certificates from Qualified Account Holders, we are not requesting that payment
be made for interest with respect thereto.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any interest
payment on any portion of the principal amount of the Securities referred to
above are no longer true and cannot be relied upon as of the date hereof.
We undertake that any interest received by us and not paid as provided above
shall be returned to the Trustee for the above-captioned Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
As used herein, "UNITED STATES PERSON" means 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 and an estate or trust the income of which
is subject to United States federal income taxation regardless of its source,
"UNITED STATES" means the United States of America (including the States and the
District of Columbia), "POSSESSIONS" of the United States include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands, "RESTRICTED PERIOD" means the period described in Section
1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and "FINANCIAL INSTITUTION"
means the persons described in Section 1.165-12(c)(1)(v) of the Treasury
Regulations.
This certificate is intended to comply with U.S. Treasury Regulation Section
1.163-5(c)(2)(i)(D) and shall be interpreted and retained in accordance
therewith.
We understand that this certificate is required in connection with certain tax
legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: [ ]
[To be dated on or after the
most recent relevant Interest
Payment Date]
EUROCLEAR BANK S.A. / N.V., AS OPERATOR
OF THE EUROCLEAR SYSTEM]
[CLEARSTREAM BANKING S.A.]
By:
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