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EXHIBIT 4.03
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KELLOGG COMPANY, as Issuer,
CITIBANK, N.A., as Trustee
AND
CITIBANK, N.A., as Collateral Agent
___________
INDENTURE
Dated as of August 5, 1997
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TABLE OF CONTENTS
PARTIES..................................................................................................1
RECITALS.................................................................................................1
Authorization of Indenture....................................................................1
Compliance with Legal Requirements............................................................1
Purpose of and Consideration for Indenture....................................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined..........................................................................1
Additional Amounts.............................................................................1
Additional Collateral Agent....................................................................1
Attributable Debt..............................................................................1
Board of Directors.............................................................................2
Business Day...................................................................................2
Capital Stock..................................................................................2
Cedel .......................................................................................2
Closing Date...................................................................................2
Collateral Agent...............................................................................2
Common Depositary..............................................................................2
Company .......................................................................................2
Consolidated Net Tangible Assets...............................................................2
Corporate Trust Office.........................................................................2
Coupon .......................................................................................2
Debt .......................................................................................2
Euroclear......................................................................................2
Event of Default...............................................................................2
Holder," "Holder of Notes," "Noteholder........................................................3
Indenture......................................................................................3
Kellogg (Deutschland)..........................................................................3
mortgage" and "mortgages.......................................................................3
Note" or "Notes................................................................................3
Officers' Certificate..........................................................................3
Opinion of Counsel.............................................................................3
Outstanding....................................................................................3
Paying Agent...................................................................................3
Payment Date...................................................................................3
Person .......................................................................................3
Place of Payment...............................................................................4
Pledged Securities.............................................................................4
principal......................................................................................4
Principal Property.............................................................................4
property.......................................................................................4
Replacement Agent..............................................................................4
Responsible Officer............................................................................4
Restricted Period Expiration Date..............................................................4
Restricted Subsidiary..........................................................................4
Sale and LeaseBack Transaction.................................................................4
Series" or "Series of Notes....................................................................4
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Subsidiary.....................................................................................5
Temporary Global Note..........................................................................5
Trustee .......................................................................................5
Trust Estate...................................................................................5
vice president.................................................................................5
ARTICLE TWO
NOTES
SECTION 2.1 Series Issuable; Denominations.................................................................5
SECTION 2.2 Execution, Authentication and Delivery of Notes................................................5
SECTION 2.3 Payments.......................................................................................7
SECTION 2.4 Collateral Agent and Paying Agents; Appointments...............................................9
SECTION 2.5 Cancellation, Destruction and Records.........................................................10
SECTION 2.6 Issue of Replacement Notes and Coupons........................................................10
SECTION 2.7 ISIN Numbers..................................................................................11
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest.............................................................12
SECTION 3.2 Offices for Payment...........................................................................12
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee............................................12
SECTION 3.4 Written Statement to Trustee..................................................................12
SECTION 3.5 Limitations upon Liens........................................................................12
SECTION 3.6 Limitation on Liens on Pledged Securities.....................................................14
SECTION 3.7 Limitations upon Sale and LeaseBack Transactions..............................................14
SECTION 3.8 Limitations upon Certain Activities by Kellogg (Deutschland)..................................15
ARTICLE FOUR
SECURITY
SECTION 4.1 Pledge of Pledged Securities..................................................................15
SECTION 4.2 Dividends and Distributions; Voting...........................................................15
SECTION 4.3 Distributions Belonging to Trust Estate.......................................................16
SECTION 4.4 Collateral Agent May Take Action..............................................................16
SECTION 4.5 Remedies......................................................................................17
SECTION 4.6 Application of Money Collected................................................................17
SECTION 4.7 Release of Trust Estate.......................................................................18
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined......................................................................18
SECTION 5.2 Acceleration of Maturity......................................................................19
SECTION 5.3 Waiver of Default.............................................................................19
SECTION 5.4 Collection of Indebtedness by Trustee; Trustee May Prove Debt.................................19
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SECTION 5.5 Application of Proceeds.......................................................................21
SECTION 5.6 Suits for Enforcement.........................................................................22
SECTION 5.7 Restoration of Rights on Abandonment of Proceedings...........................................22
SECTION 5.8 Limitations on Suits by Noteholders...........................................................22
SECTION 5.9 Unconditional Right of Noteholders to Institute Certain Suits.................................23
SECTION 5.10 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.......................23
SECTION 5.11 Control by Noteholders........................................................................23
SECTION 5.12 Waiver of Past Defaults.......................................................................23
ARTICLE SIX
THE TRUSTEE AND THE COLLATERAL AGENT
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default..................24
SECTION 6.2 Certain Rights of the Trustee.................................................................25
SECTION 6.3 Rights, Duties and Responsibilities of the Collateral Agent; Additional Collateral Agents.....26
SECTION 6.4 Not Responsible for Recitals, Disposition of Notes or Application of Proceeds Thereof.........27
SECTION 6.5 Trustee and Agents May Hold Notes; Collections, etc...........................................27
SECTION 6.6 Moneys Held by Trustee........................................................................27
SECTION 6.7 Compensation and Indemnification of Trustee and Its Prior Claim...............................27
SECTION 6.8 Right of Trustee and Collateral Agent to Rely on Officers' Certificate, etc...................28
SECTION 6.9 Disqualification of Trustee or Collateral Agent; Conflicting Interests........................28
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.....................................30
SECTION 6.11 Acceptance of Appointment by Successor Trustee or Collateral Agent............................31
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee
or Collateral Agent.........................................................................31
SECTION 6.13 Preferential Collection of Claims Against the Company.........................................32
ARTICLE SEVEN
MEETINGS OF NOTEHOLDERS
SECTION 7.1 Meetings of Holders...........................................................................35
SECTION 7.2 No Delay of Rights by Meeting.................................................................36
SECTION 7.3 Evidence of Action Taken by Noteholders.......................................................36
SECTION 7.4 Notes Owned by Company Deemed Not Outstanding.................................................37
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Noteholders........................................37
SECTION 8.2 Supplemental Indentures With Consent of Noteholders...........................................38
SECTION 8.3 Effect of Supplemental Indenture..............................................................39
SECTION 8.4 Documents to Be Given to Trustee and Collateral Agent.........................................39
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms...............................................39
SECTION 9.2 Notes to be Secured in Certain Events.........................................................39
SECTION 9.3 Successor Corporation Substituted.............................................................40
SECTION 9.4 Opinion of Counsel............................................................................40
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability........................................................................40
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and Noteholders.......................40
SECTION 10.3 Successors and Assigns of Company Bound by Indenture..........................................41
SECTION 10.4 Notices and Communications....................................................................41
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein............42
SECTION 10.6 Governing Law.................................................................................43
SECTION 10.7 Counterparts..................................................................................43
SECTION 10.8 Effect of Headings............................................................................43
TESTIMONIUM
SIGNATURES
EXHIBIT A Form of Temporary Global 6-1/8% Note
EXHIBIT B Form of Definitive 6-1/8% Note
EXHIBIT C Terms and Conditions of 6-1/8% Notes
EXHIBIT D Form of Certificate to be Given by Euroclear or Cedel
EXHIBIT E Form of Certificate to be Given by Beneficial Owners
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THIS INDENTURE is made as of August 5, 1997 between KELLOGG COMPANY, a
Delaware corporation (the "Company"), CITIBANK, N.A., a national banking
association duly incorporated and existing under the laws of the United States
of America, acting through its principal corporate trust office in New York, as
trustee (the "Trustee"), CITIBANK, N.A., a national banking association duly
incorporated and existing under the laws of the United States of America acting
through its principal corporate trust office in New York, as collateral agent
(the "Collateral Agent"), and the paying agents appointed herein.
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue of $500,000,000
aggregate principal amount of its 6-1/8% Notes due August 6, 2001 (the "Notes")
and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Notes by the
holders thereof, the Company, the Trustee, the Collateral Agent and the Paying
Agents mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Notes as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" means such accounting principles
as are generally accepted in the United States at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole, as supplemented and amended from time to
time, and not to any particular Article, Section or other subdivision (except as
otherwise expressly provided). The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Additional Amounts" means any additional amounts payable with respect
to the Notes as provided in the form thereof.
"Additional Collateral Agent" shall have the meaning set forth in
Section 6.3.
"Attributable Debt" means the present value (discounted at the actual
percentage rate inherent in a Sale and Lease-Back Transaction, as determined in
good faith by the Company, compounded semi-annually) of the obligation of a
lessee for rental payments during the remaining term of any lease (including any
period for which such lease has been extended). Such rental payments shall not
include amounts payable by the lessee for maintenance and repairs, insurance,
taxes, assessments and similar charges and for contingent rents (such as those
based on sales). In case of any lease which is terminable by the lessee upon the
payment of a penalty, such rental payments shall also include such penalty, but
no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated. Any determination of any
actual percentage rate inherent in any such Sale and Lease-Back Transaction made
in good faith by the Company shall be binding and conclusive.
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"Board of Directors" means either the Board of Directors of the Company
or any committee of such Board duly authorized to act hereunder.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for business in New York City and the relevant Place of Payment.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock.
"Cedel" means Cedel, societe anonyme.
"Closing Date" means August 5, 1997, or such other date as the
underwriters participating in the sale of such Series of Notes and the Company
may agree.
"Collateral Agent" means the person named as the "Collateral Agent" in
the first paragraph of this instrument unless an Additional Collateral Agent
shall have been named pursuant to the applicable provisions of this Indenture,
and thereafter, "Collateral Agent" shall mean the Collateral Agent and
Additional Collateral Agent; provided that if a successor Collateral Agent has
been named pursuant to the applicable provisions of this Indenture, then
thereafter "Collateral Agent" shall mean the successor Collateral Agent.
"Common Depositary" means Citibank, N.A., London Office, as common
depositary on behalf of Euroclear and Cedel.
"Company" means (except as otherwise provided in Article Six) Kellogg
Company, a Delaware corporation, and, subject to Article Nine, its successors
and assigns.
"Consolidated Net Tangible Assets" means, as of any particular time,
the total amount of assets (less applicable reserves) after deducting therefrom
(a) all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being computed and
excluding current maturities of long-term indebtedness), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, all as shown in the latest quarterly consolidated
balance sheet of the Company contained in the Company's then most recent annual
report to stockholders or quarterly report filed with the United States
Securities and Exchange Commission, as the case may be, except that assets shall
include an amount equal to the Attributable Debt in respect of any Sale and
Lease-Back Transaction not capitalized on such balance sheet.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered.
"Coupon" means any interest coupon appertaining to any Note.
"Debt" shall have the meaning set forth in Section 3.5.
"Euroclear" means Morgan Guaranty Trust Company of New York (Brussels
Office), as operator of the Euroclear System.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Holder," "Holder of Notes," "Noteholder" or other similar terms mean
the bearer of one or more Notes and, when used with respect to any Coupon, means
the bearer thereof.
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"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular Series of Notes
established as contemplated hereunder.
"Kellogg (Deutschland)" means Kellogg (Deutschland) GmbH, a corporation
organized under the laws of the Federal Republic of Germany.
"mortgage" and "mortgages" shall have the meanings set forth in
Section 3.5.
"Note" or "Notes" has the meaning stated in the first recital of this
Indenture, and, where the context so permits, includes the Temporary Global
Note.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Company and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 10.5, if and to the extent required hereby.
"Outstanding" when used with reference to Notes, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption
of which moneys in the necessary amount and in the specified currency
or currency unit shall have been deposited in trust with the Trustee or
with any paying agent (other than the Company) or shall have been set
aside, segregated and held in trust by the Company for the holders of
such Notes (if the Company shall act as its own paying agent), provided
that if such Notes, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Notes in substitution for which other Notes shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Notes as to which proof satisfactory to the Trustee and the Company is
presented that such Notes is held by a person in whose hands such Notes
is a legal, valid and binding obligation of the Company).
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Note on behalf of the Company.
"Payment Date" shall have the meaning set forth in Section 2.3(b).
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Notes of any Series,
means the place or places where the principal of and interest, if any, on the
Notes of that Series are payable.
"Pledged Securities" means the Capital Stock owned by the Company of
Kellogg (Deutschland), which are pledged for the benefit of the holders of the
Notes pursuant to this Indenture, together with any securities received by the
Collateral Agent in respect of such shares of Capital Stock pursuant to the
provisions hereof.
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"principal" whenever used with reference to the Notes or any Note or
any portion thereof, shall be deemed to include "and premium, if any".
"Principal Property" means any manufacturing plant or facility which is
located within the continental United States of America and is owned by the
Company or any Restricted Subsidiary, except any such plant or facility which
the Board of Directors by resolution declares is not of material importance to
the total business conducted by the Company and its Restricted Subsidiaries as
an entirety and which, when taken together with all other plants and facilities
as to which such a declaration has been made, are so declared by the Board of
Directors to be not of material importance to the total business conducted by
the Company and its Restricted Subsidiaries as an entirety.
Prior Secured Notes" shall have the meaning set forth in Section 3.6.
"property" shall have the meaning set forth in Section 3.5.
"Replacement Agent" shall have the meaning set forth in Section 2.6(a).
"Responsible Officer" when used with respect to the Trustee shall mean
any officer within the Corporate Trust and Agency Group (or any successor group)
of the Trustee including any vice president, assistant vice president, assistant
secretary, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Period Expiration Date" means the date which is 40 days
after the Closing Date.
"Restricted Subsidiary" means any Subsidiary (i) substantially all the
property of which is located within the continental United States of America,
(ii) which owns a Principal Property, and (iii) in which the Company's
investment, direct or indirect and whether in the form of equity, debt or
advances, as shown on the consolidating balance sheet used in the preparation of
the latest quarterly consolidated financial statements of the Company preceding
the date of determination, is in excess of 1% of the total consolidated assets
of the Company as shown on such quarterly consolidated financial statements;
provided, however, that the term "Restricted Subsidiary" shall not include any
Subsidiary which is principally engaged in leasing or in financing installment
receivables or which is principally in financing the Company's operations
outside the continental United States of America.
"Sale and Lease-Back Transaction" means any arrangement with any person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property of the Company or any Restricted Subsidiary (whether such
Principal Property is owned at the date of this Indenture or thereafter
acquired) (except for temporary leases for a term of not more than three years
and except for leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), which Principal Property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such person.
"Series" or "Series of Notes" means the Notes.
"Subsidiary" means any corporation which is consolidated in the
Company's accounts and any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned or controlled by the Company, or by
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Temporary Global Note" means the single, temporary global note
representing the Notes.
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"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, any successor
trustee.
"Trust Estate" means the Pledged Securities and related distributions
and proceeds pledged to the Collateral Agent pursuant to Article Four hereof.
"vice president" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
ARTICLE TWO
NOTES
SECTION 2.1 Series Issuable; Denominations. (a) The Notes
issuable pursuant to this Indenture are limited to one series: the $500,000,000
aggregate principal amount of 6-1/8% Notes due August 6, 2001.
(b) The Notes will be issuable in denominations of $1,000, $10,000 and
$100,000.
The Notes will be secured by the Pledged Securities to the extent
provided in Article Four.
The Notes shall be subject to redemption as provided in the respective
forms thereof.
SECTION 2.2 Execution, Authentication and Delivery of Notes.
(a) The provisions set forth under this subsection (a) shall apply to
the execution, authentication and delivery of the Notes:
(i) The Notes will initially be represented by the Temporary
Global Note without interest Coupons in substantially the form set
forth in Exhibit A.
(ii) Beneficial interests in the Temporary Global Note will be
exchangeable for definitive Notes in bearer form, with Coupons
attached, in substantially the form set forth in Exhibit B, on or after
the Restricted Period Expiration Date upon and to the extent that the
certification requirements set forth in Section 2.2(c)(ii) have been
complied with.
(iii) The Temporary Global Note shall be delivered by the
Company to the Trustee at least one Business Day prior to the Closing
Date, and the Trustee shall deliver the Temporary Global Note, duly
authenticated by an authorized signatory of the Trustee upon
instruction from the Company to the Common Depositary. The Company will
deliver, or cause to be delivered, to the Trustee at least 10
days prior to the Restricted Period Expiration Date, the definitive
Notes for delivery, authentication and endorsement by the Trustee as
provided in Section 2.2(c), below.
(b) The Trustee may, at its discretion, appoint any person to act as
the agent of the Trustee in authenticating, delivering and endorsing the Notes
or taking any other action that is required by this Indenture to be taken with
respect thereto. Such person may authenticate, deliver and endorse the Notes
whenever the Trustee may do so, unless limited by the terms of such appointment.
Each reference in this Indenture and the Notes to authentication, delivery,
endorsement or the taking of any other action by the Trustee shall include
authentication, delivery, endorsement or the taking of any other action by any
such agent so appointed.
(c) (i) The Trustee shall (subject to subsection (ii) below) on or
after the Restricted Period Expiration Date authenticate and deliver to
the Common Depositary for the account of owners of beneficial
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interests in the Temporary Global Note which have provided the
certification described in subsection (ii) below, in exchange for the
portion of the Temporary Global Note beneficially owned by such
owners, the definitive Notes in an aggregate principal amount equal to
the aggregate principal amount of the Temporary Global Note
beneficially owned by such owners.
(ii) Notwithstanding anything to the contrary in subsection
(i) above, the Trustee will only authenticate and deliver the
definitive Notes with respect to portions of the Temporary Global Note
as to which Euroclear or Cedel has delivered to the Trustee a
certificate or certificates substantially in the form set forth in
Exhibit D, dated not earlier than the Restricted Period Expiration
Date. Solely for the purposes of United States Treas. Reg.
ss.1.163-5(c)(2)(i)(D), the Company hereby appoints the Trustee as its
agent to receive any certificates substantially in the form of Exhibit
D that are required to be delivered pursuant to this subsection (ii)
and to retain any such certificates for a period of four calendar years
following the year in which any such certificates are received, and the
Trustee hereby accepts such appointment. The delivery to the Trustee by
Euroclear or Cedel of such a certificate may be relied upon by the
Company and the Trustee as conclusive evidence that a related
certificate or certificates substantially in the form set forth in
Exhibit E and dated not earlier than 15 days prior to the date of the
related certificate of Euroclear or Cedel has or have been delivered
(as provided in United States Treas. Reg. Section 1.163-5(c)(2)(i)(D)
(3)) to Euroclear or Cedel by one or more beneficial owners of the
Temporary Global Note.
(iii) Upon delivery by Euroclear or Cedel to the Trustee of
certificates substantially in the form of Exhibit D as contemplated in
subsection (ii) above, the part of the Temporary Global Note referred
to in such certificates shall be exchanged for definitive Notes and
shall be endorsed on Schedule II to the Temporary Global Note to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of such definitive Note or Notes. Until the
entire principal amount of the Temporary Global Note has been so
exchanged in full, holders of beneficial interests in the Temporary
Global Note shall in all respects be entitled to the same benefits as
holders of the definitive Notes authenticated and delivered hereunder,
except that neither the holders nor the beneficial owners of the
Temporary Global Note shall be entitled to receive payments of
principal of, or interest or any Additional Amounts, if any, on, the
Temporary Global Note except as provided in Section 2.2(e) and Exhibit
A.
(d) In the event that any Payment Date with respect to the Notes shall
occur at a time when any portion of the principal amount of the Temporary Global
Note has not been exchanged for definitive Notes, payments of principal of, and
interest and Additional Amounts (if any), on that portion of the principal
amount of the Temporary Global Note which has not been exchanged for definitive
Notes shall be paid by the Company to the Trustee on or before such Payment Date
and shall be held by the Trustee for payment to Euroclear or Cedel upon such
exchange (whereupon Euroclear and Cedel have undertaken to credit such amount to
the account of the owner(s) of the related portion(s)).
(e) Interest payable after the delivery of a definitive Note may be
collected only upon presentation of the Coupons attached thereto as they mature.
(f) Any exchange pursuant to Section 2.2(c) shall be made free of
charge to the holder and the beneficial owners of the Temporary Global Note and
to the holders of the definitive Notes issued in exchange for beneficial
interests in the Temporary Global Note as provided above.
(g) Upon return of the entire principal amount of the Temporary Global
Note to the Trustee in exchange for the definitive Notes, the Trustee shall
cancel the Temporary Global Note by perforation and shall forthwith destroy such
Temporary Global Note on behalf of the Company.
(h) All Notes delivered to the Trustee, including the Temporary Global
Note, shall be signed on behalf of the Company by a duly authorized officer of
the Company, and any such signature may be manual or facsimile.
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The signature of any person who shall hold any office at the date of signature
may be used notwithstanding that when any Note shall be delivered any such
person shall have ceased to hold such office. The Company covenants that each
such Note, when issued, will constitute the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms.
SECTION 2.3 Payments.
(a) Payments of principal and interest will be made against surrender
of the Notes or Coupons on and after the payment dates in respect thereof, as
the case may be, at the offices of any of the Paying Agents, subject in each
case to any applicable laws or regulations. Except as ordered by a court of
competent jurisdiction or as required by law, the Paying Agents, the Trustee and
the Company shall be entitled, notwithstanding any notice to the contrary, to
treat the bearer of any Note or Coupon as the absolute owner thereof (whether or
not such Note or Coupon shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment when
due in full or in part and for all other purposes and shall not be required to
obtain any proof thereof or as to the identity of the bearer.
(b) The Company shall, by 10:00 a.m. London time at least two Business
Days prior to each date on which any payment (whether of principal, interest or
otherwise) in respect of the Notes or the Coupons becomes due (a "Payment
Date"), cause the bank through which such payment is to be made to confirm, by
tested telex or authenticated Swift message MT100, to the Trustee that
irrevocable payment instructions to effect the relevant payment have been given
by 10:00 a.m. New York time, and shall, by 10:00 a.m. New York time on each
Payment Date, transfer to the Trustee such amount as may be required for the
purposes of such payment.
(c) Subject to payment being duly made by the Company as provided
above, the Paying Agents shall pay or cause to be paid on behalf of the Company
on and after each Payment Date the amounts due in respect of the Notes or the
Coupons, as the case may be, in accordance with the terms of this Indenture. So
long as the Company has made payments as provided in Section 2.3(b) on or before
each Payment Date, the Company shall not be liable for any delay in payments by
the Trustee or any Paying Agent hereunder. Unless and until the full amount of
any payment has been made to the Trustee, none of the Paying Agents shall be
bound to make payments in respect of the Notes or the Coupons as aforesaid.
(d) (i) The Trustee shall forthwith notify by facsimile transmission
each of the Paying Agents and the Company in the event that it has not
received the confirmation referred to in Section 2.3(b) or on any
Payment Date received the full amount so payable on such date.
(ii) In the absence of such notification from the Trustee in
accordance with Section 2.3(d)(i) to the effect that the Trustee (a)
has not received the confirmation referred to in Section 2.3(b) or (b)
has not received payment, such Paying Agent shall assume that the
Trustee has received the confirmation referred to in Section 2.3(b) and
the full amount due on such Payment Date in respect of the Notes or the
Coupons, as the case may be, and shall be entitled:
(A) to pay maturing Notes and Coupons in accordance
with the terms of this Indenture; and
(B) to claim from the Trustee any amounts so paid by
it.
(e) The Trustee shall on demand promptly reimburse the other Paying
Agents for payments in respect of the Notes and the Coupons if properly made by
them in accordance with the term of this Indenture.
(f) If the Trustee has not received by any Payment Date the full amount
payable on such date but receives such full amount later it shall:
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(i) forthwith so notify the Paying Agents and the Company;
and
(ii) as soon as practicable give notice to the holders of the
Notes in the manner provided in Section 10.4 that it has received such
full amount.
(g) All sums payable to the Trustee hereunder with respect to the Notes
shall be paid in United States dollars, subject to applicable laws and
regulations, in immediately available funds to such account as the Trustee may
from time to time notify to the Company.
(h) Notwithstanding any other provision hereof, no payment with respect
to the principal of, or interest or Additional Amounts (if any) on, any Notes
may be made at any office of the Trustee or any Paying Agent in the United
States of America (including the States and the District of Columbia) or its
possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands) (the "United States"), nor
will any payment be made by transfer to an account in, or by mail to an address
in, the United States. Except as provided in Section 2.2(e), payments of
principal and interest will be made against surrender of the Notes or Coupons,
as the case may be, on and after the payment dates in respect thereof at the
specified offices of any of the Paying Agents outside the United States, subject
in each case to any applicable laws and regulations. Such payments will be made
by check, or at the option of the holder, by transfer to an account maintained
by such holder payee with a bank outside the United States.
(i) Subject to Article Six hereof, the Trustee shall be entitled to
deal with monies paid to it hereunder in the same manner as other monies paid to
it as a banker by its customers except that (A) it shall not be entitled to
exercise any lien, right of set-off or similar claim in respect thereof and (B)
it shall not be liable to any person for interest on any sums held by it under
this Indenture.
(j) If on presentation of a Note or Coupon the amount payable in
respect thereof is not paid in full (otherwise than as a result of deduction of
tax as otherwise expressly permitted by the Indenture), the Paying Agent to
which the Note or Coupon is presented shall ensure that such Note or Coupon is
enfaced with a memorandum of the amount paid and the date of payment.
(k) If the Company or any Paying Agent is compelled by United States
law to make any withholding or deduction from any payment due in respect of any
Note, it will make available to the Trustee for inspection, upon its written
request, all records, accounts, certificates and other documents relating to
such payment in order that the Trustee may confirm to the holder of such Note
that such payment has been duly made.
(l) (i) In the case of the redemption of any Note (as provided in
the form thereof) prior to maturity, the Note shall be presented for
payment together with all unmatured Coupons appertaining to that Note;
failing presentation of all such Coupons, the payment of principal
will only be made against the Noteholder giving such indemnity and
providing such other documents in respect of the missing unmatured
Coupons as the Company may require. In the case of any such
redemption, the unmatured Coupons (if any) appertaining thereto shall
become void and no payment shall be due in respect thereof.
(ii) If the due date for redemption of any Note is not an
Interest Payment Date, the interest accrued from the preceding Interest
Payment Date (or from the Issue Date, as the case may be) shall be
payable only against surrender of the relevant Note.
(m) Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of or interest on the Notes or Coupons
and not applied but remaining unclaimed for two years after the date upon which
such principal or interest shall have become due and payable, shall, be repaid
to the Company by the Trustee or by such Paying Agent, and all liability of the
Trustee or any Paying Agent with respect to such moneys shall thereupon cease.
The Holder of any such Note or any Coupon appertaining thereto shall, unless
otherwise
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required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Company for payment, as a general
unsecured creditor thereof. Subject to applicable laws and regulations, any
payment that will be made by the Company under this paragraph with respect to
any Notes or Coupons will be made outside the United States.
SECTION 2.4 Collateral Agent and Paying Agents; Appointments.
(a) Citibank, N.A., at its principal corporate trust office in New York
is hereby appointed by the Company as Collateral Agent upon the terms and
subject to the conditions set forth below. Citibank, N.A., at its principal
corporate trust office in New York hereby accepts such appointment.
(b) Citibank, N.A. at its principal corporate trust office in London,
Citibank (Luxembourg) S.A. at its principal corporate trust office in Luxembourg
and Citibank, N.A., Brussels Branch at its principal corporate trust office in
Brussels are hereby appointed paying agents upon the terms and subject to the
conditions set forth below for the payment of the principal of and interest on
the Notes and to perform such other duties relating thereto as are set forth
herein or in the Notes. Citibank, N.A. at its principal corporate trust office
in London, Citibank (Luxembourg) S.A. at its principal corporate trust office in
Luxembourg and Citibank, N.A., Brussels Branch at its principal corporate trust
office in Brussels hereby accept such appointments.
(c) The Company may at any time appoint additional Paying Agents, and
subject to Section 2.4(e), terminate the appointment of any Paying Agent with
the prior written consent of the Trustee, in each case by giving the Paying
Agent concerned and the Trustee no less than 60 days' written notice to that
effect, which notice shall not expire less than 30 days before or after any
Payment Date.
(d) Subject to Section 2.4(e), any Paying Agent may resign its
appointment hereunder at any time by giving to the Company and to the Trustee
not less than 60 days' prior written notice to that effect, which notice shall
expire not less than 30 days before or after any Payment Date.
(e) Notwithstanding Sections 2.4(c) and 2.4(d), no resignation by or
termination of the appointment of any Paying Agent shall take effect if as a
result of such resignation or termination there would cease to be so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, a Paying Agent in Luxembourg with respect
to the Notes.
(f) Any Paying Agent may change the address of its office within a
particular city, in which event it shall give to the Company and the Trustee not
less than 30 days' prior written notice to that effect, giving the address of
the new office and the date upon which such change is to take effect.
(g) The Trustee shall give to the holders of the Notes, in the manner
provided in Section 10.4, not less than 45 days' notice of any such proposed
appointment, termination, resignation or change of which it is aware.
(h) Any successor Paying Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Paying Agent,
without any further act, deed or conveyance shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Paying Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Paying Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Paying Agent
hereunder.
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(i) Any retiring Paying Agent shall, following its resignation or
removal, continue to enjoy the indemnities set forth herein with respect to the
performance or non-performance of its obligations hereunder while serving as
Paying Agent.
SECTION 2.5 Cancellation, Destruction and Records.
(a) All Notes which are redeemed (together with such unmatured Coupons
as are attached thereto or are surrendered therewith at the time of such
redemption) and all Coupons which are paid or have become void shall be
cancelled forthwith by perforation by the Paying Agent by or through which they
are redeemed, paid or received. Such Paying Agent shall give all relevant
details and forthwith forward the cancelled Notes and Coupons to the Trustee.
(b) The Trustee shall forthwith destroy all cancelled Notes and Coupons
on behalf of the Company upon receipt thereof (whether directly or from any
other Paying Agent).
(c) The Trustee shall as soon as practicable and in any event within
three months after the date of any such redemption or payment furnish to the
Company a certificate stating (i) the aggregate principal amount of Notes which
have been redeemed and cancelled and the aggregate amount paid in respect of
Coupons which have been paid and cancelled, (ii) the serial numbers of such
Notes, (iii) the total numbers by maturity date of such Coupons and (iv) that
all such cancelled Notes and Coupons have been destroyed.
(d) The Trustee shall keep a full and complete record of all Notes and
Coupons and of their validation, redemption, purchase, cancellation or payment
(as the case may be) and of all replacement Notes and Coupons issued in
substitution for lost, stolen, mutilated, defaced or apparently destroyed Notes
or Coupons and shall make such record available at all reasonable times to the
Company.
SECTION 2.6 Issue of Replacement Notes and Coupons.
(a) The Company shall cause a sufficient quantity of additional Notes
and Coupons to be made available, upon request, to the Trustee for the purpose
of issuing replacement Notes and Coupons in accordance with the terms of this
Indenture.
(b) The Trustee (in such capacity, the "Replacement Agent") shall,
subject to and in accordance with the following provisions of this Section 2.6,
and the terms of this Indenture, issue any replacement Notes or Coupons in place
of Notes or Coupons which have been lost, stolen, mutilated, defaced or
apparently destroyed.
(c) In the case of a mutilated or defaced Note, the Replacement Agent
shall ensure that (unless otherwise covered by such indemnity and other
documents as the Company may require) any replacement Note will only have
attached to it Coupons corresponding to those attached to the mutilated or
defaced Note which is presented for replacement.
(d) The Replacement Agent shall not issue any replacement Note or
Coupon unless and until the applicant therefor shall have:
(i) paid such costs as may be incurred in connection
therewith;
(ii) (in the case of a lost, stolen, defaced, mutilated or
destroyed Note or Coupon) furnished the Replacement Agent with such
evidence (including evidence as to the serial number of the Note or
Coupon in question) and indemnity in respect thereof as the Company and
the Replacement Agent may require; and
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(iii) surrendered to the Replacement Agent any mutilated or
defaced Note or Coupon to be replaced.
(e) The Trustee shall cancel and destroy any mutilated or defaced Notes
or Coupons replaced pursuant to this Section 2.6 and shall furnish the Company
with a certificate stating the serial numbers of Notes and Coupons so cancelled
and destroyed.
(f) The Replacement Agent shall, on issuing any replacement Note or
Coupon, forthwith inform the other Paying Agents and the Company of the serial
number of such replacement Note or Coupon issued, the date of issue and the
serial number of the Note or Coupon in place of which such replacement Note or
Coupon has been issued.
(g) Whenever any Note or Coupon alleged to have been lost, stolen or
destroyed in replacement for which a new Note or Coupon has been issued shall be
presented to any of the Paying Agents for payment, the Paying Agent to which
such Note or Coupon is presented shall immediately send notice thereof to the
Trustee (if other than such Paying Agent), which shall so inform the Company and
after consultation between them take appropriate action.
(h) Notwithstanding anything to the contrary stated herein, no
replacement Note or Coupon shall be delivered within the United States.
SECTION 2.7 ISIN Numbers.
The Company in issuing the Notes may use "ISIN" numbers (if then
generally in use), and, if so, the Trustee shall use "ISIN" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "ISIN" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the series of Notes
identified in Section 2.1 that it will duly and punctually pay or cause to be
paid the principal of, and interest on, the Notes, in accordance with the terms
of this Indenture.
The interest on the Notes, except as otherwise provided in Section
2.2(d), shall be payable only upon presentation and surrender of the attached
Coupons (as they mature) at the office of a Paying Agent outside the United
States.
SECTION 3.2 Offices for Payment.
The Company has initially appointed the Paying Agents specified in
Section 2.4(b) hereof. The Company agrees that, so long as any of the Notes are
outstanding, it will maintain (i) a paying agent outside the United States, and
(ii) so long as the Notes are listed on the Luxembourg Stock Exchange and the
rules of the Luxembourg Stock Exchange shall so require, it will maintain a
paying agent in Luxembourg.
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SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to the Series of Notes hereunder.
SECTION 3.4 Written Statement to Trustee. The Company will deliver to
the Trustee for the Series of Notes on or before a date not more than four
months after the end of each of its fiscal years during which the Notes are
outstanding a written statement, signed by two of its officers (which need not
comply with Section 10.5), stating that in the course of the performance of
their duties as officers of the Company they would normally have knowledge of
any default by the Company in the performance or fulfillment of any covenant,
agreement or condition contained in this Indenture, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
SECTION 3.5 Limitations upon Liens.
(a) The Company will not, nor will it permit any Restricted Subsidiary
to issue, assume or guarantee any indebtedness for money borrowed (hereinafter
in this Section 3.5 called "Debt"), secured by a mortgage, security interest,
pledge, lien or other encumbrance (mortgages, security interests, pledges, liens
and other encumbrances being hereinafter in this Section 3.5 called "mortgage"
or "mortgages") upon any Principal Property of the Company or any Restricted
Subsidiary or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or indebtedness are
owned at the date of this Indenture or thereafter acquired) without in any such
case effectively providing concurrently with the issuance, assumption or
guaranty of any such debt, that the Notes (together with, if the Company shall
so determine, any other indebtedness of or guaranteed by the Company or such
Restricted Subsidiary ranking equally with the Notes and then existing or
thereafter created) shall be secured equally and ratably with (or, at the option
of the Company, prior to) such Debt so long as such Debt shall be so secured;
provided, however, that the foregoing restrictions shall not apply to Debt
secured by:
(i) mortgages on property, shares of stock or indebtedness
(hereinafter in this Section 3.5 called "property") of any corporation
existing at the time such corporation becomes a Restricted Subsidiary;
(ii) mortgages on property existing at the time of acquisition
of the affected property by the Company or a Restricted Subsidiary, or
mortgages to secure the payment of all or any part of the purchase
price of such property upon the acquisition of such property by the
Company or a Restricted Subsidiary or to secure any Debt incurred by
the Company or a Restricted Subsidiary prior to, at the time of, or
within 360 days after the later of the acquisition, the completion of
construction (including any improvements on an existing property) or
the commencement of commercial operation of such property, which Debt
is incurred for the purpose of financing all or any part of the
purchase price thereof or construction or improvements thereon;
provided, however, that in the case of any such acquisition,
construction or improvement, the mortgage shall not apply to any
property theretofore owned by the Company or a Restricted Subsidiary,
other than, in the case of any such construction or improvement, any
real property on which the property so constructed, or the improvement,
is located which in the opinion of the Board of Directors (or duly
authorized committee thereof) was prior to such construction or
improvement, substantially unimproved for the use intended by the
Company or such Restricted Subsidiary;
(iii) mortgages on property of a Restricted Subsidiary
securing Debt owing to the Company or to another Restricted Subsidiary;
(iv) mortgages on property of a corporation existing at the
time such corporation is merged into or consolidated with the Company
or a Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation or firm as an entirety
or substantially as an entirety to the Company or a Restricted
Subsidiary; provided, however, that any such mortgages do not attach to
or affect property theretofore owned by the Company or such Restricted
Subsidiary;
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(v) mortgages on property owned or leased by the Company or a
Restricted Subsidiary in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, or in favor of any other country or any political subdivision
thereof, or in favor of holders of securities issued by any such
entity, pursuant to any contract or statute (including, without
limitation, mortgages to secure Debt of the pollution control or
industrial revenue bond type) or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or
the cost of construction of the property subject to such mortgages;
(vi) mortgages existing at the date of this Indenture,
including the pledge of the Pledged Securities pursuant to Article
Four;
(vii) landlords' liens on fixtures located on premises leased
by the Company or a Restricted Subsidiary in the ordinary course of
business;
(viii) mortgages on property of the Company or a Restricted
Subsidiary to secure partial, progress, advance or other payments or
any Debt incurred for the purpose of financing all or any part of the
purchase price or the cost of construction, development, or substantial
repair, alteration or improvement of the property subject to such
mortgages if the commitment for the financing is obtained not later
than one year after the later of the completion of or the placing into
operation (exclusive of test and start-up periods) of such constructed,
developed, repaired, altered or improved property;
(ix) mortgages arising in connection with contracts and
subcontracts with or made at the request of the United States of
America, or any state thereof, or any department, agency or
instrumentality of the United States of America or any state thereof;
(x) mechanics', materialmen's, carriers' or other like liens
arising in the ordinary course of business (including construction of
facilities) in respect of obligations which are not due or which are
being contested in good faith;
(xi) any mortgage arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulations, which is
required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege,
franchise or license;
(xii) mortgages for taxes, assessments or governmental charges
or levies not yet delinquent, or mortgages for taxes, assessments or
governmental charges or levies already delinquent but the validity of
which is being contested in good faith;
(xiii) mortgages (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are being
contested in good faith and, in the case of judgment liens, execution
thereon is stayed; or
(xiv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
mortgage referred to in the foregoing clauses (i) to (xiii), inclusive;
provided, however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement mortgage, and that such
extension, renewal or replacement mortgage shall be limited to all or a
part of the property which secured the mortgage so extended, renewed or
replaced (plus improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section 3.5, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by mortgages which would otherwise be subject
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to the foregoing restrictions in an aggregate amount which, together with all
other Debt of the Company and its Restricted Subsidiaries which (if originally
issued, assumed or guaranteed at such time) would otherwise be subject to the
foregoing restrictions (not including Debt permitted to be secured under clauses
(i) through (xiv) above), does not at the time exceed 10% of Consolidated Net
Tangible Assets (as defined above), as shown on the latest quarterly
consolidated financial statements of the Company preceding the date of
determination.
SECTION 3.6 Limitation on Liens on Pledged Securities.
The Company will not create, incur, assume or permit to exist any
mortgage on any of the Pledged Securities other than the mortgage of this
Indenture and the mortgage created pursuant to the Indenture dated September 29,
1994 between the Company and The Chase Manhattan Bank, N.A., as trustee and
collateral agent, with respect to the Company's 8-1/8% Secured Notes due
September 29, 1997 and the Company's 5-1/4% Secured Notes due September 29,
1997 (the "Prior Secured Notes").
SECTION 3.7 Limitations upon Sale and Lease-Back Transactions.
(a) The Company will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property of the Company or
any Restricted Subsidiary (whether such Principal Property is owned at the date
this Indenture or thereafter acquired) (except for temporary leases for a term
of not more than three years and except for leases between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries), which Principal
Property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such person (herein referred to as a "Sale and
Lease-Back Transaction"), unless (a) the Company or such Restricted Subsidiary
would be entitled, pursuant to the provisions of Sections 3.5(a) or 3.5(b), to
issue, assume or guarantee Debt secured by a mortgage upon such Principal
Property at least equal in amount to the Attributable Debt in respect of such
arrangement without equally and ratably securing the Notes; provided, however,
that from and after the date on which such arrangement becomes effective, the
Attributable Debt in respect of such arrangement shall be deemed for all
purposes under Sections 3.5 and 3.7 to be Debt subject to the provisions of
Section 3.5; or (b) the Company shall apply an amount in cash equal to the
Attributable Debt in respect of such arrangement to the retirement (other than
any mandatory retirement or by way of payment at maturity), within 120 days of
the effective date of any such arrangement, of Debt of the Company or any
Restricted Subsidiary (other than Debt owned by the Company or any Restricted
Subsidiary and other than Debt of the Company which is subordinated to the
Notes) which by its terms matures at or is extendible or renewable at the option
of the obligor to a date more than twelve months after the date of the creation
of such Debt.
SECTION 3.8 Limitations upon Certain Activities by Kellogg
(Deutschland).
The Company, as the sole shareholder of Kellogg (Deutschland), agrees
that so long as the pledge of the Pledged Securities is effective pursuant to
Article Four hereof, it will not, without the consent of a majority of the
holders of the Notes, permit Kellogg (Deutschland) to take any of the following
actions other than in the ordinary course of its business:
(a) guarantee, assume or become liable on the obligation of another; or
(b) pay or secure any debt owing by Kellogg (Deutschland) to the
Company.
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ARTICLE FOUR
SECURITY
SECTION 4.1 Pledge of Pledged Securities.
To secure the prompt and complete payment and performance when due of
the Notes, the Company hereby agrees to use commercially reasonable efforts to
pledge to the Collateral Agent, and to grant to the Collateral Agent a security
interest in, the Pledged Securities, as of September 30, 1997 subject only to
the repayment of the Prior Secured Notes on September 29, 1997 and the execution
and delivery of the Notarial Deed. In furtherance of the foregoing, the Company,
Kellogg (Deutschland) and the Collateral Agent will use their commercially
reasonable efforts to enter into a Notarial Deed, to be dated as of September
30, 1997, before a notary in Bern, Switzerland at the expense of the Company.
The Company will pay any taxes which may become payable on the Pledged
Securities, or other charges or fees which may reasonably be incurred as a
result of the pledge, or as a result of transfer pursuant to the provisions of
this Article.
SECTION 4.2 Dividends and Distributions; Voting.
(a) Provided that no Event of Default shall have occurred and be
continuing, the Company shall be entitled to receive all dividends payable on or
distributions in respect of the Pledged Securities (except for certain
distributions described in Section 4.3). The Collateral Agent, upon the written
request of the Company, shall deliver to the Company proper orders in the
Company's favor for such dividends on or distributions in respect of the Pledged
Securities in order that the Company may receive payment thereof for its own
use, and the Collateral Agent shall on demand pay to the Company any such
dividends or distributions which may be received by the Collateral Agent.
(b) Provided that no Event of Default shall have occurred and be
continuing, the Company shall have the right to vote and give consents with
respect to the Pledged Securities for any purpose not inconsistent with this
Indenture. The Collateral Agent shall, upon the request of the Company, give to
the Company or its nominee suitable proxies, or such other written authority as
may reasonably be required, in respect of any and all of the Pledged Securities
standing in the name of the Collateral Agent or its nominee. Such proxies or
other written authority shall at all times contain a provision that the holder
thereof shall have no right to vote for or to otherwise authorize or consent to
anything inconsistent with this Indenture.
(c) Upon the occurrence and during the continuation of an Event of
Default, all dividends payable on or other distributions made in respect of the
Pledged Securities shall be paid to the Collateral Agent and held as part of the
Trust Estate, and shall not be paid over to the Company. The Company agrees to
take such actions as shall accomplish the foregoing.
(d) Upon the occurrence and during the continuation of an Event of
Default, the Company shall grant to the Collateral Agent a power of attorney or
proxy entitling it or its nominee or nominees to exercise all the powers,
including voting rights, of an owner with respect to the Pledged Securities. In
so doing, the Collateral Agent shall not be required to attend any meeting of
holders of the Pledged Securities. The Collateral Agent may exercise such powers
for any purpose or purposes which the Collateral Agent, in its discretion, shall
deem advisable and in the interest of the holders of the Notes, whether or not
such action may involve a change in the character of the Pledged Securities or
in the proportionate interest or voting power represented by any of the Pledged
Securities. In the course of exercising such powers the Collateral Agent may
vote or act by power of attorney or proxy, and such power of attorney or proxy
may be granted to any person selected by the Collateral Agent, other than an
officer or affiliate of the Company.
(e) The Pledged Securities shall, upon the instructions of the
Collateral Agent accompanied by the Pledged Securities, be registered in the
name of the Collateral Agent and the Company agrees to take all actions
necessary to accomplish the same; provided that, unless the Collateral Agent has
taken action pursuant to instructions from the Trustee
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in accordance with Section 5.4, upon the curing or waiver of the Event of
Default giving rise to the transfer, the Pledged Securities shall be registered
back into the name of the Company.
SECTION 4.3 Distributions Belonging to Trust Estate.
The Collateral Agent shall be entitled to receive and hold as a part of
the Trust Estate, and the Company shall make appropriate arrangements in respect
thereof, any of the following forms of distributions:
(a) Distributions of cash or property in the event of the dissolution
or liquidation of Kellogg (Deutschland) GmbH;
(b) Distributions of capital, paid-in capital surplus, cash or other
property in the event of any reorganization of Kellogg (Deutschland); or
(c) Distributions of stock, bonds or other securities intended to
replace the Pledged Securities in the event of any reorganization of the capital
structure of Kellogg (Deutschland).
SECTION 4.4 Collateral Agent May Take Action.
The Collateral Agent may at any time take such steps as in its sole
discretion it shall deem necessary, and shall take such steps as instructed by
the Trustee, to protect the interests of the holders of the Notes in respect of
any Pledged Securities, either by instituting or requesting or authorizing the
institution of any legal proceedings to enforce its rights as a holder of the
Pledged Securities, or in any other manner permitted by applicable law, and the
Collateral Agent may join in any plan of reorganization in respect to the
Pledged Securities and may accept cash or new securities payable or issued in
exchange therefor under such plan, or part cash and part such securities. In
case the Collateral Agent shall not join in a plan of reorganization as
authorized in respect of the Pledged Securities, then the Collateral Agent shall
receive any portion of the cash proceeds of sale or other property accruing on
or with respect to the Pledged Securities and shall hold such cash proceeds of
sale or other property as part of the Trust Estate.
SECTION 4.5 Remedies.
If an Event of Default with respect to the Notes occurs and is
continuing, the Collateral Agent, upon written instructions from the Trustee
pursuant to Section 5.4 hereof, shall:
(i) cause any action at law or suit in equity or other
proceeding to be instituted and prosecuted to realize upon the Trust
Estate in any manner or priority and to collect or enforce any
securities or obligations included in the Trust Estate; and
(ii) sell, in all events subject to any mandatory requirements
of law applicable thereto (including the German Civil Code), upon 10
Business Days prior notice to the Company of the time and place of any
public sale or the time after which any private sale is to be made, the
Trust Estate (as an entirety or, to the extent permitted by law, any
part thereof, in one or more parcels), and all right, title and
interest, claim and demand therein, free of any right of redemption
thereof except as provided by law, such sale or sales to be made in
such manner at such place or places and upon such terms as the
Collateral Agent may fix or determine, or as may be required by law,
and the Collateral Agent may be a purchaser at any such sale and may
apply any amounts due and owing on the Notes to the payment of the
purchase price of the Trust Estate; and on any such sale or sales, the
Collateral Agent is hereby appointed the true and lawful
attorney-in-fact of the Company (which appointment is irrevocable and
coupled with an interest in the Notes), in its name and stead or in the
name of the Collateral Agent, to execute all deeds, bills of sale and
instruments of assignment and transfer, and to make all necessary
conveyances, assignments, transfers and deliveries; and the receipt of
the Collateral Agent for the
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purchase money paid at any such sale shall be a sufficient discharge
therefor to any purchaser of the Trust Estate, or any part thereof.
SECTION 4.6 Application of Money Collected.
Any money collected by the Collateral Agent pursuant to this Article
shall be applied in the following order:
FIRST: To the payment of any and all expenses and fees
(including reasonable attorney's fees) incurred by the Collateral Agent
in affecting any of the remedies under Section 4.5 and any and all
amounts incurred by the Collateral Agent in connection therewith;
SECOND: To the payment of all amounts due the Trustee or
Trustees and Collateral Agent hereunder pursuant to Section 6.7
(pertaining to payments to and indemnification of the Trustee and the
Collateral Agent), ratably, according to the amounts due and owed to
such trustee or trustees;
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal and any premium and interest,
respectively.
FOURTH: To the Company.
SECTION 4.7 Release of Trust Estate.
(a) Subject to subsection (b) of this Section, any portion or all of
the Trust Estate may be released from the lien of this Indenture at any time or
from time to time with the consent, obtained in accordance with Section 8.2, of
Holders of not less than a majority in principal amount of each series of Notes.
(b) At any time when an Event of Default or an event which, with notice
or lapse of time, or both, would constitute an Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise), no release of any portion or
all of the Trust Estate pursuant to this Indenture shall be effective as against
the Holders.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined.
Any one or more of the following events shall constitute an Event of
Default with respect to the Series of Notes within the meaning of this Article:
(a) default in any payment of the principal of any Note as and when the
same shall become due and payable (whether at maturity, upon redemption, or
otherwise); or
(b) default in any payment of any installment of interest or any
required payment of any Additional Amount pursuant to the terms of the Notes on
any of the Notes as and when the same shall become due and payable and
continuance of such default for a period of 30 days; or
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(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in respect of
the Notes or this Indenture, for a period of 90 days after the date on which
written notice specifying such failure and requiring the Company to remedy the
same and stating that such notice is a "Notice of Default" hereunder shall have
been given by registered or certified mail to the Company by the Trustee, or to
the Company and the Trustee by the Holders of at least twenty-five percent in
aggregate principal amount of the Notes, provided that the failure to execute
the Notarial Deed and pledge the Pledged Securities shall not constitute an
Event of Default hereunder so long as the Company has complied with Section 4.1;
or
(d) the Company shall make an assignment for the benefit of creditors,
or shall file a petition in bankruptcy; or the Company shall be adjudicated
insolvent or bankrupt, or shall petition or shall apply to any court having
jurisdiction in the premises for the appointment of a receiver, trustee,
liquidator or sequestrator of, or for, the Company or any substantial portion of
the property of the Company; or the Company shall commence any proceeding
relating to the Company or any substantial portion of the property of the
Company under any insolvency, reorganization, arrangement, or readjustment of
debt, dissolution, winding-up, adjustment, composition or liquidation law or
statute of any jurisdiction, whether in effect at the date of this Indenture or
thereafter created (hereinafter in this subsection (d) called "Proceeding"); or
if there shall be commenced against the Company any Proceeding and an order
approving the petition shall be entered, or such Proceeding shall remain
undischarged for a period of 60 days; or receiver, trustee, liquidator or
sequestrator of, or for, the Company or any substantial portion of the property
of the Company shall be appointed and shall not be discharged within a period of
60 days; or the Company by any act shall indicate consent to or approval of or
acquiescence in any Proceeding or the appointment of a receiver, trustee,
liquidator or sequestrator of, or for, the Company or any substantial portion of
the property of the Company; provided that a resolution or order for winding-up
the Company with a view to its merger or consolidation with another company or
the sale or conveyance of all or substantially all of its assets to such other
company as provided in Section 6 shall not make the rights and remedies herein
enforceable under this clause (d) if such last-mentioned company shall, as a
part of such merger, consolidation, sale or conveyance, and within 60 days from
the passing of the resolution or the date of the order, comply with the
conditions to that end stated in Article 9; or
SECTION 5.2 Acceleration of Maturity.
If an Event of Default with respect to the Series of Notes hereunder
shall have occurred and be continuing either the Trustee or the Holders of not
less than twenty-five percent in aggregate principal amount at maturity of the
Notes of such Series then Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Holders), may declare the principal
of the Notes of such Series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.
SECTION 5.3 Waiver of Default.
(a) The provisions of Section 5.2, however, are subject to the
condition that if the Company shall remedy the default in accordance with the
terms of subsection (b), below, in each and every such case the Holders of a
majority in aggregate principal amount of the Notes of the Series may, by
written notice to the Company and to the Trustee, waive any such default and
rescind and annul any such declaration of acceleration of maturity and its
consequences.
(b) The Company may remedy any such default by the payment to or
deposit with the Trustee of a sum sufficient to pay in the appropriate currency:
(1) all matured and unpaid installments of interest, if any, upon the affected
Notes and any Additional Amounts in respect thereof, (2) any principal which
shall have become due and payable other than by acceleration (including interest
upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, upon overdue installments of interest, at the
same rate as the rate of interest specified in the affected Notes), (3) an
amount sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel and all other expenses and liabilities incurred, and all
advances made in connection with such Event of Default, and (4) an amount
sufficient to cover reasonable compensation to the Collateral Agent, and all
other expenses and liabilities incurred, if any, by the Collateral Agent in
connection with such Event of Default.
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(c) No waiver or rescission and annulment under this Section shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereof.
SECTION 5.4 Collection of Indebtedness by Trustee; Trustee May
Prove Debt.
(a) The Company covenants that in case default shall be made in the
payment of any installment of interest on the Notes when such interest shall
have become due and payable, including any Additional Amount in respect thereof,
and such default of interest payment shall have continued for a period of 30
days, or in case default shall be made in the payment of all or any part of the
principal of the Notes when such principal shall have become due and payable
(whether upon maturity or the Notes or upon any redemption or by declaration or
otherwise), the Company will upon demand of the Trustee pay to the Trustee:
(i) the whole amount that then shall have become due and
payable on all Notes or Coupons (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate of interest specified in the
Notes), and
(ii) such amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the
Trustee and the Collateral Agent, any predecessor Trustee or Collateral
Agent, their respective agents, attorneys and counsel, and any expenses
or liabilities otherwise reasonably incurred, or advances made, by any
Trustee or Collateral agent.
(b) Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Notes to the persons entitled thereto, whether
or not the principal of or interest on the Notes are overdue.
(c) (i) 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 proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree.
(ii) Such actions or proceedings as may be instituted by the
Trustee pursuant to the provisions of this Article may include, but are
not limited to, directing the Collateral Agent to realize upon the
Trust Estate in the manner provided in Section 4.5.
(iii) The Trustee may enforce any judgment or final decree so
obtained against the Company or other obligor upon the Notes and
collect in the manner provided by law out of the property of the
Company or other obligor upon the Notes or Coupons, wherever situated,
the moneys adjudged or decreed to be payable.
(d) In case there shall be pending proceedings relative to the Company
or any other obligor upon the Notes or Coupons under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Company or other obligor under the Notes or Coupons, if any, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes, and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and
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Collateral Agent and each predecessor Trustee and Collateral Agent, and
their respective agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee,) and of the Noteholders and the
Holders of any Coupons appertaining thereto allowed in any judicial
proceedings relative to the Company or other obligor upon the Notes or
to the creditors or property of the Company or such other obligor,
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Holders of Notes or
Coupons and of the Trustee on their behalf; and any trustee, receiver,
or liquidator, custodian or other similar official is hereby authorized
by each of the Holders to make payments to the Trustee, and, in the
event that such Trustee shall consent to the making of payments
directly to the Holders, to pay to such Trustee such amounts as shall
be sufficient to cover reasonable compensation to such Trustee, each
predecessor Trustee, the Collateral Agent and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by such Trustee, each predecessor Trustee and
the Collateral Agent and all other amounts due to such Trustee, any
predecessor Trustee or the Collateral Agent pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes or any Coupon appertaining thereto, may be enforced by
the Trustee without the possession of any of the Notes or any Coupon
appertaining thereto or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee and Collateral Agent, each predecessor Trustee or
Collateral Agent and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes and Holders of any Coupons in
respect of which such action was taken.
(g) In any proceedings brought by the Trustee, or any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party, the Trustee shall be held to represent all the Holders
of the Notes or Coupons appertaining thereto in respect to which such action was
taken, and it shall not be necessary to make any Holders of the Notes or Coupons
appertaining thereto parties to any such proceedings.
SECTION 5.5 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Notes shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the Notes and any Coupons appertaining thereto in respect of
which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Notes in reduced principal amounts in exchange
for the presented Notes of like Series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
Notes in respect of which moneys have been collected, including
reasonable compensation to the Trustee and Collateral Agent and each
predecessor Trustee or Collateral Agent and their respective agents and
attorneys and of all expenses and liabilities incurred, and all
advances made by the Trustee and each predecessor Trustee, and all
other amounts due to the Trustee and Collateral Agent or any
predecessor Trustee or Collateral Agent pursuant to Section 6.7;
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SECOND: In case the principal of the Notes in respect of which
moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Notes in default in the
order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as
the rate of interest specified in such Notes, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Notes in respect of which
moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon
all the Notes for principal and interest, with interest upon the
overdue principal, and (to the extent that payment of such interest is
permissible by law and that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the
rate of interest specified in the Notes; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon
the Notes or Coupons, then to the payment of such principal and
interest without preference or priority of principal over interest or
of interest over principal, or of any installment of interest over any
other installment of interest, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 5.6 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.7 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the Noteholders shall continue as though no such
proceedings had been taken.
SECTION 5.8 Limitations on Suits by Noteholders.
(a) No Holder of any Note or Holder of any Coupon shall have any right
by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless
(i) such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as
hereinbefore provided, and
(ii) the Holders of not less than 25% in aggregate principal
amount of the Notes then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own
name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity, as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action or proceeding, and no
direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 5.11.
(b) It is hereby expressly covenanted by the taker and Holder of every
Note and by the Holder of any Coupon with every other taker and Holder of any
Note or Coupon and the Trustee, that no one or more Holders of the
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Notes or Coupons shall have any right in any manner whatever, by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Notes or Coupons, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Notes and Coupons. For the
protection and enforcement of the provisions of this Section, each and every
such Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.9 Unconditional Right of Noteholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of any
Note or Coupon, the right of any Holder of any Note and the right of any Holder
of any Coupon appertaining thereto to receive payment of principal or interest
on such Note or Coupon, in the respective amount and in the appropriate currency
on or after the respective due dates expressed in such Note, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 5.10 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder to exercise any
right or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.8, every power and remedy given by this Indenture or by law to the
Trustee, to the Noteholders or to the Holder of any Coupon appertaining thereto
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee, the Noteholders or Holders of any Coupon.
SECTION 5.11 Control by Noteholders. The Holders of a majority in
aggregate principal amount of the Notes affected at the time Outstanding shall
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Notes by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall determine that the action or proceedings so directed
would involve the Trustee in personal liability, or if the Trustee in good faith
shall so determine that the actions or forbearance specified in or pursuant to
such direction would be unduly prejudicial to the interests of Holders of the
Notes or of the Holders of any Coupons appertaining thereto not joining in the
giving of said direction, it being understood that (subject to Section 6.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forbearance are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Noteholders.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of a majority in aggregate principal amount of Notes at the time
Outstanding may, on behalf of the Holders of all the Notes of such Series and
Holders of all Coupons, waive any past default hereunder or its consequences,
except a default in the payment of the principal of or interest on any Note. In
the case of any such waiver, the Company, the Trustee, the Noteholders and the
Holder of any Coupon appertaining thereto shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
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Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
ARTICLE SIX
THE TRUSTEE AND THE COLLATERAL AGENT
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. The Trustee, prior to the occurrence of an Event of Default
with respect to the Notes or after the curing or waiving of an Event of Default
which may have occurred with respect to the Notes, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default with respect to the Notes has occurred (which has not
been cured or waived) of which a Responsible Officer has actual knowledge, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the
Notes and after the curing or waiving of any such Event of Default with respect
to the Notes which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Notes shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform on their face to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 5.11 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
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Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the conditions of this Section
6.1.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section
6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or any assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection and
reasonably satisfactory to the Company and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of any Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in aggregate principal amount of the Notes affected then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
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SECTION 6.3 Rights, Duties and Responsibilities of the Collateral
Agent; Additional Collateral Agents.
(a) The Collateral Agent has been appointed by the Company to act as
Collateral Agent for the Trust Estate in accordance with the terms of Article
Four. The Collateral Agent shall act or be required to act only in accordance
with the terms of this Indenture.
(b) Notwithstanding anything else in this Indenture to the contrary, at
any time that the Trustee and the Collateral Agent are the same person, neither
of them shall be required to issue instructions or notices to the other in
fulfilling their respective duties hereunder.
(c) Whenever the Collateral Agent shall deem it necessary or prudent in
order either to (1) conform to any applicable law, or (2) make any claim or
bring any suit with respect to the Pledged Securities or the Trust Estate, or in
the event that the Collateral Agent shall have been requested to do so by the
holders of a majority of the aggregate principal amount outstanding of the
Notes, acting together, the Company shall, promptly upon receipt of written
notice from the Collateral Agent, take such action as may be necessary or proper
to constitute and appoint another bank or trust company, to act as either an
additional collateral agent, jointly with the Collateral Agent, or as a separate
collateral agent (any such additional or separate agent being herein called an
"Additional Collateral Agent"). Any Additional Collateral Agent so appointed
shall have such powers as may be granted pursuant to such action and the
Additional Collateral Agent shall be vested with any property, title, right or
power of the Collateral Agent deemed necessary or advisable by the Collateral
Agent, subject to the remaining provisions of this Section 6.3. Each Additional
Collateral Agent appointed pursuant to this Section shall otherwise be subject
to, and shall have the benefits of the appointment under this Indenture, insofar
as they apply to the Collateral Agent. The Collateral Agent may execute, deliver
and perform any deed, conveyance, assignment or other instrument in writing as
may be required by any Additional Collateral Agent to more fully and certainly
vest in him any property, title, right or power which by the terms of such
agreement supplemental hereto are expressed to be conveyed or conferred to or
upon such Additional Collateral Agent under this Indenture.
(d) If at any time the Collateral Agent shall deem it no longer
necessary or prudent in order to conform to any law or take any such action, or
in the event that the Collateral Agent shall have been requested to do so in
writing by the holders of a majority of the aggregate principal amount
outstanding of the Notes, acting together, the Collateral Agent shall execute
and deliver an agreement supplemental hereto and all other instruments and
agreements necessary or proper to remove any Additional Collateral Agent.
(e) Any request, approval or consent in writing by the Collateral Agent
to any Additional Collateral Agent shall be sufficient warrant to such
Additional Collateral Agent to take such action as may be so requested, approved
or consented.
(f) The Company agrees:
(i) to pay to the Collateral Agent from time to time
reasonable compensation for all services rendered by it hereunder;
(ii) except as otherwise expressly provided herein, to
reimburse the Collateral Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Collateral
Agent in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Collateral Agent for, and to hold it
harmless against, any loss, liability or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder
and its duties hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in connection
with the exercise or
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performance of any of its powers or duties hereunder. The obligations
of the Company under this Section to compensate and indemnify the
Collateral Agent and to pay or reimburse the Collateral Agent for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a
senior claim to that of the Notes upon all property and funds held or
collected by the Collateral Agent as such.
SECTION 6.4 Not Responsible for Recitals, Disposition of Notes or
Application of Proceeds Thereof. The recitals contained herein and in the Notes,
except the Trustee's certificate of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor the Collateral Agent
assume responsibility for the correctness of the same. Neither the Trustee nor
the Collateral Agent makes any representation as to the validity or sufficiency
of this Indenture or of the Notes or the Coupons. The Trustee and the Collateral
Agent each represents that it is duly authorized to execute and deliver this
Indenture and perform its obligations hereunder. Neither the Trustee nor the
Collateral Agent shall be accountable for the use or application by the Company
of any of the Notes or of the proceeds thereof.
SECTION 6.5 Trustee and Agents May Hold Notes; Collections, etc. Each
of the Trustee, the Collateral Agent, any Paying Agent or any agent of the
Company, the Trustee or the Collateral Agent, in its respective individual or
any other capacity, may become the owner or pledgee of any Notes or Coupons with
the same rights it would have if it were not the Trustee or such agent and,
subject to Section 6.9, if operative, may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.6 Moneys Held by Trustee. All moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither the
Trustee nor any agent of the Company or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
SECTION 6.7 Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation in United States
dollars (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request in Dollars for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense, including taxes (other than taxes based upon,
measured by, or determined by the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises, including, without
limitation, any claim or liability for backup withholding or non-resident alien
withholding taxes (and interest and penalties thereon) under United States tax
laws. The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Notes upon all property and funds held or
collected by the Trustee as such.
The Trustee shall have a lien prior to the Notes as to all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this Section 6.7, except with respect to funds held in trust for the
benefit of the Holders of particular Notes.
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When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(d), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.8 Right of Trustee and Collateral Agent to Rely on Officers'
Certificate, etc. Subject to Sections 6.1, 6.2 and 6.3, whenever in the
administration of the trusts of this Indenture the Trustee or the Collateral
Agent shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee or the Collateral Agent, be deemed to be conclusively proved and
established by an Officers' Certificate complying with Section 10.5 delivered to
the Trustee or the Collateral Agent, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee or the Collateral Agent,
shall be full warrant to the Trustee or the Collateral Agent for any action
taken, suffered or omitted by it or under the provisions of this Indenture upon
the faith thereof.
SECTION 6.9 Disqualification of Trustee or Collateral Agent;
Conflicting Interests. If the Notes shall be in default and the Trustee or the
Collateral Agent for the Notes has or shall acquire any "conflicting interest"
as hereinafter defined, it shall, within 90 days after ascertaining that it has
such conflicting interest, and if the default to which such conflicting interest
relates has not been cured or waived or otherwise eliminated before the end of
such 90-day period, the Trustee or the Collateral Agent, as the case may be,
shall, either eliminate such conflicting interest or resign in the manner and
with the effect specified in this Indenture.
For purposes of this Section 6.9, the Trustee (which term shall include
the Collateral Agent for purposes of the following) with respect to the Series
of Notes shall be deemed to have a conflicting interest if such Notes are in
default (as such term is defined in Section 5.1, but exclusive of any period of
grace or requirement of notice) and--
(1) such Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are outstanding,
unless such other indenture is a collateral trust indenture under which
the only collateral consists of Notes; or
(2) such Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) such Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) such Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee, or representative
of the Company, or of an underwriter (other than the Trustee itself)
for the Company who is currently engaged in the business of
underwriting, except that--
(A) an individual may be a director and/or an
executive officer of such Trustee and a director and/or an
executive officer of the Company, but may not be at the same
time an executive officer of both such Trustee and of the
Company, and
(B) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual
may be a director and/or an executive officer of the Trustee
and a director of the Company, and
(C) such Trustee may be designated by the Company or
by any underwriter for the Company, to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal
agent,
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escrow agent, or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of
this subsection, to act as trustee, whether under an indenture
or otherwise.
(5) 10 per centum or more of the voting securities of such
Trustee is beneficially owned either by the Company or by any director,
partner, or executive officer thereof, or 20 per centum or more of such
voting securities is beneficially owned, collectively, by any two or
more of such persons; or 10 per centum or more of the voting securities
of such Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner, or executive officer thereof, or
is beneficially owned, collectively, by any two or more such persons;
(6) such Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default,
(A) 5 per centum or more of the voting securities, or
10 per centum or more of any other class of security, of the
Company, not including securities issued under any other
indenture under which such Trustee is also trustee, or
(B) 10 per centum or more of any class of security of
an underwriter for the Company;
(7) such Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 5 per centum
or more of the voting securities of any person who, to the knowledge of
the Trustee, owns 10 per centum or more of the voting securities of, or
controls directly or is under direct or indirect common control with,
the Company;
(8) such Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 10 per
centum or more of any class of security of any person who, to the
knowledge of the trustee, owns 50 per centum or more of the voting
securities of the Company; or
(9) such Trustee owns, on the date of default upon the Notes
(exclusive of any period of grace or requirement of notice) or any
anniversary of such default while such default upon the Notes remains
outstanding, in the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25 per centum or more of the
voting securities, or of any class of security, of any person, the
beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (6), (7), or (8) of
this subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which include them, the provisions of
the preceding sentence shall not apply for a period of not more than 2
years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25 per centum of such
voting securities or 25 per centum of any such class of security.
Promptly after the dates of any such default upon the Notes and
annually in each succeeding year that the Notes remain in default such
Trustee shall make a check of its holding of such securities in any of
the above-mentioned capacities as of such dates. If the Company fails
to make payment in full of principal or interest under this Indenture
when and as the same becomes due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the trustee, with sole or
joint control over such securities vested in it, shall be considered as
though beneficially owned by such trustee, for the purposes of
paragraphs (6), (7), and (8) of this subsection; or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b), the Trustee shall be or
shall become a creditor of the Company.
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SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to the Series of Notes by giving written notice of
resignation to the Company and by mailing notice thereof to the Holders in the
manner and to the extent provided in Section 10.4. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee or trustees
with respect to the applicable Notes by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to the Series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Noteholder who has been a bona fide Holder of the Series for at least six
months may, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) If at any time the Trustee or the Collateral Agent shall become
incapable of competently fulfilling its duties with respect to the Notes, or
shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or the Collateral Agent, respectively, or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
the Collateral Agent, respectively, or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, the Company may remove
the Trustee or the Collateral Agent with respect to the applicable Notes and
appoint a successor trustee or Collateral Agent for such Notes by written
instrument, in duplicate, executed by order of the Board of Directors of the
Company, one copy of which instrument shall be delivered to the Trustee or
Collateral Agent so removed and one copy to the successor trustee or Collateral
Agent, or any Noteholder who has been a bona fide Holder of the Series for at
least six months may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee or
Collateral Agent and the appointment of a successor trustee or Collateral Agent
with respect to such Notes. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee or Collateral Agent and
appoint a successor trustee or Collateral Agent.
(c) The Holders of a majority in aggregate principal amount of the
Notes may at any time remove the Trustee or Collateral Agent with respect to
such Notes and appoint a successor trustee or Collateral Agent with respect to
such Notes by delivering to the Trustee or Collateral Agent so removed, to the
successor trustee or Collateral Agent so appointed and to the Company the
evidence provided for in Section 7.3 of the action in that regard taken by the
Noteholders.
(d) Any resignation or removal of the Trustee or Collateral Agent with
respect to the Notes and any appointment of a successor trustee or Collateral
Agent with respect to the Notes pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the
successor trustee or Collateral Agent as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee or
Collateral Agent.
(a) Any successor Trustee or Collateral Agent appointed as provided in
Section 6.10 shall execute and deliver to the Company and to its predecessor
Trustee or Collateral Agent an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor with respect to all
or any applicable Note shall become effective and such successor, without any
further act, deed or conveyance, shall become vested with all rights, powers,
duties and obligations with respect to the Notes of its predecessor hereunder,
with like effect as if originally named trustee or Collateral Agent for such
Series hereunder.
(b) On the written request of the Company or of the successor Trustee
or Collateral Agent, upon payment of its charges then unpaid, the Trustee or
Collateral Agent ceasing to act shall, subject to Section 2.3(m), pay over to
its successor all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor all such rights, powers,
duties and obligations.
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(c) Upon request of any such successor Trustee or Collateral Agent, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor all such rights and
powers. Any Trustee or Collateral Agent ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such
Trustee or Collateral Agent to secure any amounts then due it pursuant to the
provisions of Section 6.7.
(d) If a successor Trustee is appointed with respect to any Notes, the
Company, the predecessor Trustee, each successor trustee with respect to the
Notes and the Collateral Agent shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Notes as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
under separate indentures.
Upon acceptance of appointment by any successor trustee or Collateral
Agent as provided in this Section 6.11, the Company shall give notice in the
manner and to the extent provided in Section 10.4 to the Holders of the Notes
for which such successor trustee or Collateral Agent is acting. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 6.10. If the Company fails to mail such notice
within ten days after acceptance of appointment by the successor, the successor
shall cause such notice to be mailed at the expense of the Company.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee or Collateral Agent. Any corporation into which the Trustee
or Collateral Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee or Collateral Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee or Collateral Agent, shall be the successor of the
Trustee or Collateral Agent hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes of the Series shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Notes
so authenticated; and, in case at that time any of the Notes of the Series shall
not have been authenticated, any successor to the Trustee may authenticate such
Notes either in the name of any predecessor Trustee hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture provided that
the certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Notes in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Company. (a)
Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities of such
Series, the Holders of Coupons, if any appertaining thereto, and the holders of
other indenture securities (as defined in this section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, or from the
exercise of any right of set-off which
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the Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
month period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Company
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made
on account of any such claim by any person (other than the
Company) who is liable thereon, (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third person,
and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code
or applicable state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such four month
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three month period and
such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a
default as defined in subsection (c) of this Section would
occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held
as security for such claim as provided in such paragraph (B)
or (C), as the case may be, to the extent of the fair value of
such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders, the Holders of Coupons, if any,
appertaining thereto and the holders of other indenture securities in such
manner that the Trustee, such Securityholders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, such Securityholders and the holders of other indenture securities,
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion,
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if any, of such claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction (i) to
apportion between the Trustee, such Securityholders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and the property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three month period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three month
period, it shall be subject to the provisions of this subsection (a) if and only
if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section a
creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders of the applicable Series of Securities and the Holders
of the Coupons, if any, appertaining thereto, at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(3)
below;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c)(4) of this Section.
(c) As used in this Section:
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(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares
or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Company" shall mean any obligor upon the
Securities.
ARTICLE SEVEN
MEETINGS OF NOTEHOLDERS
SECTION 7.1 Meetings of Holders.
(a) Any action to be taken by the Holders of any Notes, except with
respect to the giving of a "Notice of Default" as provided in 5.1 hereof, shall
be taken at a meeting duly called and held in accordance with the provisions of
this Section 7.1.
(b) Notice of any meeting of the Holders of any Notes, setting forth
the time and place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given in accordance with Section 10.4 at
least twice, the first publication to be not less than 20 nor more than 180 days
prior to the date fixed for the meeting. To be entitled to vote at any meeting
of Holders of Notes, a person shall be either a Holder of one or more Notes
(including the beneficial owners of interests in the Temporary Global Note) or a
person appointed by an instrument in writing as proxy by the Holder of one or
more Notes. The only persons who shall be entitled to be present or to speak at
any meeting of Holders of Notes shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Company and its
counsel.
(c) The persons entitled to vote a majority in principal amount of the
Notes at the time outstanding shall constitute a quorum at a meeting of the
Holders of such Notes convened for the purpose referred to above except as
hereinafter provided. No business shall be transacted in the absence of a
quorum, unless a quorum is present when the meeting is called to order. In the
absence of a quorum, the meeting shall be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting shall be further
adjourned for a period of not less than 10 days as determined by the chairman of
the
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meeting. Notice of the reconvening of any adjourned meeting shall be given
as provided above except that such notice need be given only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Subject to the foregoing, at the reconvening of any
such meeting further adjourned for the lack of a quorum, the persons entitled to
vote 25% in principal amount of the Notes at the time outstanding shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the aggregate principal amount of the outstanding
Notes which shall constitute a quorum.
(d) At a meeting or an adjourned meeting duly convened and at which a
quorum is present as aforesaid, any resolution to amend, or to waive compliance
with, any of the covenants or conditions provided for in this Indenture or in
the Notes shall be effectively passed and/or decided by the persons entitled to
vote the lesser of (i) a majority in principal amount of the Notes then
outstanding and (ii) 75% in principal amount of the Notes represented and voting
at the meeting. Any Holder of Notes who has executed an instrument in writing
appointing a person as proxy shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted if such person duly appointed
as proxy is present and has voted; provided that such Holder shall be considered
as present for the purposes of determining a quorum or voting only with respect
to the matters covered by such instrument in writing. Any resolution passed or
decision taken at any meeting of Holders of Notes duly held in accordance with
this Section shall be binding on all the Holders of Notes whether or not present
or represented at the meeting.
(e) The holding of Notes shall be proved by the production of such
Notes or by a certificate, satisfactory to the Company, executed by any bank,
banker, trust company or recognized securities dealer, wherever situated,
satisfactory to the Company. Each such certificate shall be dated and shall
state that on the date thereof a Note bearing a specified serial number was
deposited with or exhibited to such bank, banker, trust company, or recognized
securities dealer by the person named in such certificate. Any such certificate
may be issued in respect of one or more Notes specified therein. The holding by
the person named in any such certificate of any Note specified therein shall be
presumed to continue for a period of one year from the date of such certificate
unless at the time of any determination of such holding (i) another certificate
bearing a later date issued in respect to the same Note shall be produced, (ii)
the Note specified in such certificate shall be produced by some other person or
(iii) the Notes specified in such certificate shall have ceased to be
outstanding. The appointment of any proxy shall be proved by having the
signature of the person executing the proxy guaranteed by any bank, banker,
trust company or London or New York Stock Exchange member firm satisfactory to
the Company.
(f) The Company shall appoint a temporary chairman of the meeting. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of a majority in principal amount of the Notes voting at
such meeting. At any such meeting each Noteholder shall be entitled to one vote
for each $1,000 of principal amount held or represented by him. No vote shall be
cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote except as a Holder of Notes
or proxy. Any meeting of Holders of Notes duly called at which a quorum is
present may be adjourned from time to time, and the meeting be held as so
adjourned without further notice.
(g) The vote upon any resolution submitted to any meeting of Holders of
Notes shall be by written ballot on which shall be subscribed the signatures of
the Holders of Notes or proxies and on which shall be inscribed the serial
number or numbers of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Holders of Notes 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 published as
provided above. The record shall be signed and verified by the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other duplicate
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to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 7.2 No Delay of Rights by Meeting. Nothing in this
Article Seven shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Holders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
under any of the provisions of this Indenture or of the Notes.
SECTION 7.3 Evidence of Action Taken by Noteholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Noteholders may be evidenced by one or
more instruments of substantially similar tenor signed by such specified
percentage of Noteholders in person or by agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
6.1 and 6.2) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Article.
SECTION 7.4 Notes Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Notes have concurred in any direction, consent or waiver under this
Indenture or whether a quorum is present at any meeting of Noteholders, Notes
which are owned by the Company or any other obligor on the Notes with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Notes with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee or Collateral Agent shall be
protected in relying on any such direction, consent or waiver, and for purposes
of determining the presence of a quorum, only Notes which the Trustee knows are
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee or the Collateral Agent the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Notes. In case of a dispute as to such right, the advice of
counsel shall be full protection in respect of any decision made by the Trustee
or Collateral Agent in accordance with such advice. Upon request of the Trustee
or Collateral Agent, the Company shall furnish to the Trustee or the Collateral
Agent, as the case may be, promptly an Officers' Certificate listing and
identifying all Notes, if any, known by the Company to be owned or held by or
for the account of any of the above-described persons; and, subject to Sections
6.1, 6.2 and 6.3, the Trustee or Collateral Agent shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are Outstanding for the
purpose of any such determination.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Noteholders. The
Company, when authorized by a resolution of its Board of Directors, the Trustee,
and the Collateral Agent may from time to time and at any time enter into an
indenture or indentures supplemental hereto, in form satisfactory to such
Trustee, for one or more of the following purposes:
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(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Nine;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Notes or any Coupons, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee or the Collateral Agent upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Notes to waive such an Event of
Default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable and which shall not materially and adversely affect the
interests of the Holders of the Notes or the Holders of any Coupons; or
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee or Collateral Agent with respect to
the Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than the one Trustee or
Collateral Agent, pursuant to the requirements of Section 6.11.
The Trustee and the Collateral Agent are hereby authorized to join with
the Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee and the Collateral Agent shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's or the Collateral Agent's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Notes at the
time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Noteholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Notes at the time
Outstanding of the Series affected by such supplemental indenture (treated as
one class), the Company, when authorized by a resolution of its Board of
Directors, the Trustee and the Collateral Agent, may, from time to time and at
any time, 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 the Notes; provided, that
no such supplemental indenture shall (a) extend the final maturity of any Note,
or reduce the principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or impair or affect the right of any Noteholder
to institute suit for payment thereof without the consent of the Holder of each
Note so affected, or waive a default in the payment of the principal of or
interest (including any Additional Amounts in respect thereof) on any Note, or
change the stated maturity of the principal of or any installment of interest on
any such Note; reduce the principal amount of or the rate of interest on any
such Note or change the obligation of the Company to pay Additional Amounts with
respect to such Note; change the currency of payment of principal of or interest
on any such Note; impair the right to institute suit for the enforcement of any
such payment on or with respect to any such Note; or
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modify the obligation of the Company to maintain an office or agency outside the
United States for the purposes specified herein or (b) reduce the aforesaid
percentage of Notes, the consent of the Holders of which is required for any
such supplemental indenture, without the consent of the Holders of each Note so
affected.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee as aforesaid and other documents, if any,
evidencing the action taken pursuant to Section 7.1, the Trustee and the
Collateral Agent shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects such Trustee's
or the Collateral Agent's own rights, duties or immunities under this Indenture
or otherwise, in which case such Trustee or the Collateral Agent, respectively,
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company, the Trustee and the
Collateral Agent of any supplemental indenture pursuant to the provisions of
this Section, the Company shall give notice in the manner and to the extent
provided in Section 10.4 to the Noteholders affected thereby, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to provide such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Collateral Agent, the Company and the
Holders of Notes and the Holders of any Coupons affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee and Collateral Agent. The
Trustee and the Collateral Agent, subject to the provisions of Sections 6.1, 6.2
and 6.3, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the applicable provisions of this Indenture.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms. Subject to
the provisions of Article Four and of Section 9.2, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of
the Company with or into any other corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance or lease of all or substantially all the property
of the Company to any other corporation (whether or not affiliated with the
Company) authorized to acquire and operate the same; provided, however, and the
Company hereby covenants and agrees, that upon any such consolidation, merger,
sale, conveyance or lease, other than a merger in which the Company is the
continuing corporation, the due and punctual payment of the principal of and
interest on all of the Notes, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee and the
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Collateral Agent, executed and delivered to the Trustee and the Collateral Agent
by the corporation (if other than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by the corporation which shall
have acquired or leased such property.
SECTION 9.2 Notes to be Secured in Certain Events. If, upon any
consolidation, merger, sale, conveyance or lease referred to in Section 9.1, or
upon any consolidation or merger of any Restricted Subsidiary, or upon any sale,
conveyance or lease of all or substantially all the property of any Restricted
Subsidiary to any other corporation, any Principal Property of the Company or of
any Restricted Subsidiary or any shares of capital stock or indebtedness of any
Restricted Subsidiary which is owned immediately after such consolidation,
merger, sale, conveyance or lease by the Company or a Restricted Subsidiary or a
successor to the Company pursuant to Sections 9.1 and 9.3 would thereupon become
subject to any mortgage, security interest, pledge, lien or encumbrance (other
than a mortgage, security interest, pledge, lien or encumbrance in favor of the
Company, a Restricted Subsidiary or any such successor), the Company, prior to
or concurrently with such consolidation, merger, sale, conveyance or lease, will
effectively provide that the Notes shall be secured (equally and ratably with,
if the Company shall determine, any other indebtedness of or guaranteed by the
Company or a Restricted Subsidiary ranking equally with the Notes) by a direct
lien on such Principal Property, shares of stock or indebtedness, prior to all
liens other than any theretofore existing thereon, so long as such Principal
Property, shares of stock or indebtedness shall be subject to such mortgage,
security interest, pledge, lien or encumbrance.
SECTION 9.3 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein. Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company prior to such succession any or
all of the Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Notes and Coupons, if any, appertaining
thereto, which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Notes which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Notes and Coupons appertaining thereto so
issued shall in all respects have the same legal rank and benefit under this
Indenture, as the Notes and Coupons theretofore or thereafter issued in
accordance with the terms of this Indenture, as though all of such Notes and
Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Notes and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Company or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Notes and may be
liquidated and dissolved.
SECTION 9.4 Opinion of Counsel. The Trustee and the Collateral Agent
shall receive an Opinion of Counsel, prepared in accordance with Section 10.5,
as conclusive evidence that any such consolidation, merger, sale, lease or
conveyance complies with the applicable provisions of this Indenture.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Note or
Coupon appertaining thereto, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer or director, as such, of the Company or of any
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successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Notes and
Coupons, if any, by the Holders thereof and as part of the consideration for the
issue of the Notes.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties
and Noteholders. Nothing in this Indenture or in the Notes or Coupons, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Notes and Coupons, if any, any legal
or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Notes and Coupons.
SECTION 10.3 Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.4 Notices and Communications.
(a) Except where otherwise specifically provided, any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Holders of Notes or Coupons to or on the Company may be given or
served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Company is
filed by the Company with the Trustee) to Kellogg Company, One Kellogg Square,
Battle Creek, Michigan 49016, Attention: Secretary. Any notice, direction,
request or demand by any Noteholder to or upon the Trustee or Collateral Agent
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made at the Corporate Trust Office of the Trustee or Collateral Agent,
respectively. In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Company
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
(b) All communications hereunder between the Company, the Trustee, the
Collateral Agent, and the Paying Agents, shall be in writing and shall be
delivered at or sent by facsimile or telexed to the appropriate party at its
address set forth on the signature pages of this Indenture or at such other
address as such party shall have notified to the other parties in a
communication complying with this Section 10.4(b). Any communication so sent by
facsimile or telex shall be deemed to have been delivered at the time of
dispatch with confirmation of receipt or confirmed answerback. The parties
additionally understand that
(i) all communications relating to this Indenture between the
Company and any of the Paying Agents or between the Paying Agents
themselves shall be made through the Trustee.
(ii) any notices received by the Trustee on behalf of the
Company under this Indenture and the Notes shall be delivered to the
Company by the Trustee on the dates on which the Trustee receives such
notices.
(c) All notices to the Holders of interests in the Notes will be given
by publication at least once:
(i) in a newspaper in the English language of general
circulation in London (which is expected to be the Financial Times, and
(ii) so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange so require, in
a newspaper of general circulation in Luxembourg (which is expected to
be the Luxemburger Wort);
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provided, however, if publication in London or Luxembourg is not practicable,
publication may be made in another principal city in Europe in a newspaper of
general circulation. Such notices will be deemed to have been given on the date
of such publication, or if published on different dates, on the first date on
which publication is made in any publication in which it is required.
Couponholders will be deemed for all purposes to have notice of the contents of
any notices given to the Noteholders in accordance with this paragraph.
Until such time as any definitive Notes are issued, there may, so long
as the Temporary Global Note is held in its entirety on behalf of Euroclear and
Cedel, be substituted for such publication in London, the delivery of the
relevant notice to Euroclear and Cedel for communication by them to the persons
shown in their records as having interest in the Temporary Global Note credited
to them and any such notices will be deemed to have been given on the seventh
day after delivery to Euroclear and Cedel; provided, that the foregoing shall
not relieve the Company of its obligation to publish any notices in a newspaper
of general circulation in Luxembourg so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require such publication.
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Company to the
Trustee or Collateral Agent to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee or Collateral Agent an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee or Collateral Agent with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a
statement that the person making such certificate or opinion has read such
covenant or condition, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee or Collateral Agent shall contain a statement
that such firm is independent.
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SECTION 10.6 Governing Law.
(a) (i) Subject to Section 10.6(b), this Indenture, the Temporary
Global Note, the Notes and any Coupons appertaining thereto shall be governed
and construed in accordance with the laws of the State of New York, United
States of America. The pledge of the Pledged Securities will be governed by
German law.
(ii) The Company hereby irrevocably submits to the
non-exclusive jurisdiction of any New York State or United States
Federal court sitting in The City and County of New York over any suit,
action or proceeding arising out of or related to this Indenture or any
Notes. The Company irrevocably waives, to the fullest extent permitted
by law, any objection which it may have to the laying of the venue of
any such suit, action or proceeding brought in such a court and any
claim that any such suit, action or proceeding brought in such a court
has been brought in an inconvenient forum. The Company agrees that
final judgment in any such suit, action or proceeding brought in such a
court shall be conclusive and binding upon the Company and may be
enforced in any court to the jurisdiction of which the Company is
subject by a suit upon such judgment; provided that service of process
is effected upon the Company in the manner specified in the following
paragraph or as otherwise permitted by law.
(iii) As long as any of the Notes remain outstanding, the
Company will at all times have an authorized agent in The City of New
York, upon whom process may be served in any legal action or proceeding
arising out of or relating to this Indenture or any Notes. Service of
process upon such agent and written notice of such service mailed or
delivered to the Company shall to the extent permitted by law be deemed
in every respect effective service of process upon the Company in any
such legal action or proceeding. The Company hereby appoints Citibank,
N.A. as its agent for such purpose, and covenants and agrees that
service of process in any legal action or proceeding may be made upon
it at the office of such agent at 120 Wall Street, 13th Floor, New
York, New York 10043. Attention: Corporate Trust Department (or at such
other address or, at the office of such other authorized agent as the
Company may designate by written notice to the Trustee), with a copy of
the Company at the address for notices set forth in Section 10.4
hereof; provided that failure to deliver any such copy to the Company
shall not affect the validity or effectiveness of any such service of
process.
(b) No failure to exercise, and no delay in exercising, on the part of
the Holder of any Note or Coupon, any right with respect thereto shall operate
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or future exercise thereof or the exercise of any other right. Rights
pursuant to the terms of the Notes shall be in addition to all other rights
provided by law. No notice or demand given in any case shall constitute a waiver
of rights to take other action in the same, similar or other instances without
such notice or demand.
SECTION 10.7 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 10.8 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
Address: KELLOGG COMPANY
One Kellogg Square
Battle Creek, Michigan 49016-3599 By: /S/ John R. Hinton
Attention: General Counsel -------------------------
Telephone: (616) 961-2000 John R. Hinton
Facsimile: (616) 961-3276 Senior Vice President - Administration
Telex: 224454 and Chief Financial Officer
Address: CITIBANK, N.A.,
as Trustee and Collateral Agent
120 Wall Street, 13th Floor
New York, New York 10043
Attention: Corporate Trust By: /S/ Wafaa Orfy
Telephone: (212) 412-6260 ------------------------
Facsimile: (212) 480-1614 Wafaa Orfy
Telex: BCA 235530 Senior Trust Officer
Authorized Signatory
Address: CITIBANK, N.A.,
as Paying Agent
336 Strand
London WC2R 1HB England
Attention: Corporate Trust By: /S/ Wafaa Orfy
Telephone: 44-171-500-5230 -------------------------
Facsimile: 44-171-500-5278 Wafaa Orfy
Telex: 882151/896581 Senior Trust Officer
Authorized Signatory
Address: CITIBANK (LUXEMBOURG) S.A.,
as Paying Agent
P.O. Box 1373
58 Boulevard Grande - Duchesse Charlotte
L-1330 Luxembourg
Attention: Corporate Trust By: /S/ Wafaa Orfy
Telephone: 352 44 22 4060 -------------------------
Facsimile: 352 44 22 4070 Wafaa Orfy
Telex: 2588 CITI LU Senior Trust Officer
Authorized Signatory
Address: CITIBANK, N.A., BRUSSELS BRANCH,
as Paying Agent
Boulevard General
Jacques, 263g
B-1050 Brussels
Attention: Corporate Trust By: /S/ Wafaa Orfy
Telephone: 32-2-626-6170 ------------------------
Facsimile: 32-2-626-5580 Wafaa Orfy
Telex: 65100 CIBK B Senior Trust Officer
Authorized Signatory