Exhibit 4.1
MOLINA HEALTHCARE, INC.
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of October 11, 2007
Providing for the Issuance
of
Senior Debt Securities
MOLINA HEALTHCARE, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF OCTOBER 11, 2007
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -------------------
Section 310 (a) (1) 607
(a)(2) 607
(a)(3) 613
(a)(4) Not Applicable
(b) 608, 612
Section 311 (a) 614
(b) 614
Section 312 (a) 701
(b) 701
(c) 701
Section 313 (a) 702
(b) 702
(c) 702
(d) 702
Section 314 (a) 703
(a)(4) 1006
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 602
(b) 601
(c) 602
(d) 602
(e) 513
Section 316 (a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(c) 104
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 113
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........ 1
Section 101. Definitions............................................. 1
Section 102. Compliance Certificates and Opinions.................... 10
Section 103. Form of Documents Delivered to Trustee.................. 11
Section 104. Acts of Holders......................................... 11
Section 105. Notices, Etc., to Trustee and Company................... 13
Section 106. Notice to Holders; Waiver............................... 14
Section 107. Effect of Headings and Table of Contents................ 15
Section 108. Successors and Assigns.................................. 15
Section 109. Separability Clause..................................... 15
Section 110. Benefits of Indenture................................... 15
Section 111. Governing Law........................................... 15
Section 112. Legal Holidays.......................................... 15
Section 113. Conflict of Any Provision of Indenture with Trust
Indenture Act........................................... 16
Section 114. No Recourse against Others.............................. 16
Section 115. Waiver of Trial by Jury................................. 16
ARTICLE II SECURITIES FORMS.............................................. 16
Section 201. Forms of Securities..................................... 16
Section 202. Form of Trustee's Certificate of Authentication......... 17
Section 203. Securities Issuable in Global Form...................... 17
Section 204. Form of Legend for Book-Entry Securities................ 18
ARTICLE III THE SECURITIES............................................... 19
Section 301. Amount Unlimited; Issuable in Series.................... 19
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Section 302. Denominations........................................... 23
Section 303. Execution, Authentication, Delivery and Dating.......... 23
Section 304. Temporary Securities.................................... 25
Section 305. Registration, Registration of Transfer and Exchange..... 28
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........ 32
Section 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.......................................... 34
Section 308. Optional Extension of Maturity.......................... 37
Section 309. Persons Deemed Owners................................... 38
Section 310. Cancellation............................................ 38
Section 311. Computation of Interest................................. 39
Section 312. Currency and Manner of Payments in Respect of
Securities.............................................. 39
Section 313. Appointment and Resignation of Successor Exchange Rate
Agent................................................... 42
Section 314. CUSIP Numbers........................................... 43
ARTICLE IV SATISFACTION AND DISCHARGE.................................... 43
Section 401. Satisfaction and Discharge of Indenture................. 43
Section 402. Application of Trust Funds.............................. 45
ARTICLE V REMEDIES....................................................... 45
Section 501. Events of Default....................................... 45
Section 502. Acceleration of Maturity; Rescission and Annulment...... 47
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................. 47
Section 504. Trustee May File Proofs of Claim........................ 48
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons................................... 49
Section 506. Application of Money Collected.......................... 49
Section 507. Limitation on Suits..................................... 50
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Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and Additional Amounts, if Any..... 50
Section 509. Restoration of Rights and Remedies...................... 51
Section 510. Rights and Remedies Cumulative.......................... 51
Section 511. Delay or Omission Not Waiver............................ 51
Section 512. Control by Holders of Securities........................ 51
Section 513. Undertaking for Costs................................... 52
Section 514. Waiver of Past Defaults................................. 52
Section 515. Waiver of Usury, Stay or Extension Laws................. 52
ARTICLE VI THE TRUSTEE................................................... 53
Section 601. Notice of Defaults...................................... 53
Section 602. Certain Rights of Trustee............................... 53
Section 603. Not Responsible for Recitals or Issuance of Securities.. 55
Section 604. May Hold Securities..................................... 55
Section 605. Money Held in Trust..................................... 55
Section 606. Compensation and Reimbursement.......................... 56
Section 607. Corporate Trustee Required; Eligibility................. 56
Section 608. Resignation and Removal; Appointment of Successor....... 57
Section 609. Acceptance of Appointment by Successor.................. 58
Section 610. Merger, Conversion, Consolidation or Succession to
Business................................................ 59
Section 611. Appointment of Authenticating Agent..................... 60
Section 612. Conflicting Interests................................... 61
Section 613. Appointment of Co-Trustee............................... 61
Section 614. Preferential Collection of Claims Against Company....... 62
Section 615. Trustee's Application for Instructions from the
Company................................................. 62
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............ 63
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Section 701. Disclosure of Names and Addresses of Holders............ 63
Section 702. Reports by Trustee...................................... 64
Section 703. Reports by Company...................................... 64
Section 704. Calculation of Original Issue Discount.................. 65
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER............... 65
Section 801. Company May Consolidate, Etc., Only on Certain Terms.... 65
Section 802. Successor Person Substituted............................ 65
Section 803. Officers' Certificate and Opinion of Counsel............ 66
ARTICLE IX SUPPLEMENTAL INDENTURES....................................... 66
Section 901. Supplemental Indentures Without Consent of Holders...... 66
Section 902. Supplemental Indentures with Consent of Holders......... 68
Section 903. Execution of Supplemental Indentures.................... 69
Section 904. Effect of Supplemental Indentures....................... 70
Section 905. Conformity with Trust Indenture Act..................... 70
Section 906. Reference in Securities to Supplemental Indentures...... 70
ARTICLE X COVENANTS...................................................... 70
Section 1001. Payment of Principal, Premium, if any, and Interest..... 70
Section 1002. Maintenance of Office or Agency......................... 71
Section 1003. Money for Securities Payments to be Held in Trust....... 73
Section 1004. Corporate Existence..................................... 74
Section 1005. Additional Amounts...................................... 74
Section 1006. Statement as to Compliance.............................. 75
Section 1007. Waiver of Certain Covenants............................. 75
Section 1008. Statement by Officers as to Default..................... 75
ARTICLE XI REDEMPTION OF SECURITIES...................................... 76
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Section 1101. Applicability of Article................................ 76
Section 1102. Election to Redeem; Notice to Trustee................... 76
Section 1103. Selection by Trustee of Securities to be Redeemed....... 76
Section 1104. Notice of Redemption.................................... 76
Section 1105. Deposit of Redemption Price............................. 78
Section 1106. Securities Payable on Redemption Date................... 78
Section 1107. Securities Redeemed in Part............................. 79
ARTICLE XII SINKING FUNDS................................................ 79
Section 1201. Applicability of Article................................ 79
Section 1202. Satisfaction of Sinking Fund Payments with Securities... 80
Section 1203. Redemption of Securities for Sinking Fund............... 80
ARTICLE XIII REPAYMENT AT THE OPTION OF HOLDERS.......................... 81
Section 1301. Applicability of Article................................ 81
Section 1302. Repayment of Securities................................. 81
Section 1303. Exercise of Option...................................... 81
Section 1304. When Securities Presented for Repayment Become Due and
Payable................................................. 82
Section 1305. Securities Repaid in Part............................... 83
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE........................... 83
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance....................... 83
Section 1402. Defeasance and Discharge................................ 83
Section 1403. Covenant Defeasance..................................... 84
Section 1404. Conditions to Defeasance or Covenant Defeasance......... 84
Section 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions................... 86
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Section 1406. Reinstatement........................................... 87
ARTICLE XV MEETINGS OF HOLDERS OF SECURITIES............................. 87
Section 1501. Purposes for Which Meetings May Be Called............... 87
Section 1502. Call, Notice and Place of Meetings...................... 88
Section 1503. Persons Entitled to Vote at Meetings.................... 88
Section 1504. Quorum; Action.......................................... 88
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................. 90
Section 1506. Counting Votes and Recording Action of Meetings......... 90
EXHIBIT A - FORMS OF CERTIFICATES........................................ A-1
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INDENTURE, dated as of October 11, 2007 between MOLINA HEALTHCARE, INC., a
Delaware corporation (hereinafter called the "Company"), having its principal
office at One Golden Shore Drive, Long Beach, California 90802, and U.S. BANK
NATIONAL ASSOCIATION, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company deems it desirable to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, which may or may not
be convertible into or exchangeable for any securities of any Person (including
the Company), and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities, to be
issued in one or more series, unlimited as to principal amount, to bear such
rates of interest, to mature at such times and to have such other provisions as
provided in this Indenture;
WHEREAS, this Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions; and WHEREAS,
all things necessary to make this Indenture a valid and legally binding
agreement of the Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities and coupons, or of a
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires or unless such definition
is changed or amended in a supplement or amendment to this Indenture:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned
to them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting
1
principles, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date
of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
(b) Certain terms, used principally in Article III, Article V and
Article VI are defined in those Articles.
(c) Other terms are defined as follows:
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person appointed by the Trustee to act on
behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer or that is otherwise not a Registered Security.
"Board of Directors" means the board of directors of the Company or the
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary or any Vice President of the Company to have been duly
adopted by the
2
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Clearstream" means Clearstream Banking societe anonyme or its successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Common Depository" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter, "Company" shall
mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman, the President, the
Chief Executive Officer, the Chief Financial Officer or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Controller or an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (1) a Foreign Currency
both by the government of the country which issued such Currency and by a
central bank or other public institutions of or within the international banking
community for the settlement of transactions, (2) the euro for the settlement of
transactions by public institutions of or within the European Communities or (3)
any currency unit (or composite currency) other than the euro for the purposes
for which such currency unit was established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 633 W. Fifth Street, 24th Floor,
Los Angeles, CA 90071.
"Corporation" includes corporations, associations, limited liability
companies, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
3
"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the euro, issued by the
government of one or more countries or by any reorganized confederation or
association of such governments.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307(a).
"Depository Participant" means, with respect to the Depository Trust
Company (the "Depository") or its nominee, an institution that has an account
therewith.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 312(f).
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank designated pursuant to Section 301
or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting forth (1)
the applicable Market Exchange Rate or the applicable bid quotation and (2) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate signed by the Chief Financial Officer,
the Treasurer, the Controller, any Vice President or any Assistant Treasurer or
Assistant Controller of the Company.
4
"Foreign Currency" means any Currency, including, without limitation, the
euro, issued by the government of one or more countries other than the United
States or by any recognized confederation or association of such governments.
"Government Obligations" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, securities which are:
(1) direct obligations of the government which issued the Currency in
which the Securities of a particular series are payable, or
(2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of such government which issued the Currency
in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to any one
or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or
5
commodities or by such other objective price, economic or other measures as are
specified in Section 301 hereof.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1005 or otherwise,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (1) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (2) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (3) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in clauses (1), (2) and (3) of this
definition, the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in New York City, London or another principal market for the Currency in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any Currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such Currency
shall be that upon which a non-resident issuer of securities designated in such
Currency would purchase such Currency in order to make payments in respect of
such securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, notice of exchange or conversion or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, the
President, the Chief Executive Officer or the Chief Financial Officer and by the
Treasurer, the Controller, an Assistant Treasurer, the Assistant Controller, the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee.
6
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities or any series of any
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article XIV; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided that, in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of
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original issuance of the amount determined as provided in clause (i) or clause
(iii) of this definition, respectively) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of or
within any series, the place or places where the principal of (and premium, if
any) and interest, if any, on such Securities are payable as specified and as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security that is registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
8
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant treasurer, trust officer or
any other officer of the Trustee who customarily performs 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 because of such
person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means any corporation of which at the time of determination
the Company, directly and/or indirectly through one or more Subsidiaries, owns
more than 50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, that if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean only the Trustee with respect to Securities
of that series.
9
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate the
income of which is subject to United States federal income taxation regardless
of its source or a trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
persons who have the authority to control all of its decisions.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of a corporation (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions.
(a) Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant
to Section 1006) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion with respect to such matters in one or several
documents.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
or a certificate or representations by counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel
or certificate or representations may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information as to
such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series,
as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed (which may be
electronically signed) by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may,
11
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article XV, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems reasonably sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may also be proved in any other manner that the Trustee
deems sufficient.
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(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than 180 days after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating
Agent, or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing (which may be via facsimile) to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust
Administration, or at any other address previously furnished in
writing by the Trustee to the Holders or the Company, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of the
Company's principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to
the Trustee by the Company.
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Section 106. Notice to Holders; Waiver.
(a) Where this Indenture provides for notice of any event to Holders
of Registered Securities by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, or by email, to each such
Holder affected by such event, at his physical address or email address as
such address appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
(b) In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be sufficient giving of
such notice for every purpose hereunder.
(c) Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where
this Indenture provides for notice to Holders of Bearer Securities of any
event, such notice shall be sufficiently given to Holders of Bearer
Securities if published at least twice in an Authorized Newspaper in The
City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, the first such publication to be not
earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice. Any such notice shall be deemed
to have been given on the date of the first such publication.
(d) If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any Holder of Bearer Securities as provided
above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
(e) Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
14
(f) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
In case any provision in this Indenture or in any Security, or coupon shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities, or coupons, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 111. Governing Law.
This Indenture, the Securities, and coupons shall be governed by and
construed in accordance with the law of the State of New York. This Indenture is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or any Security or coupon other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section), payment of principal (or
premium, if any) or interest, if any, need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date, Redemption Date, Repayment Date or sinking fund payment date, or at the
Stated Maturity or Maturity; provided that no interest shall accrue on the
amount
15
so payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
Section 113. Conflict of Any Provision of Indenture with Trust Indenture
Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with any provision (an "incorporated provision") required by or
deemed to be included in this Indenture by operation of the TIA, such imposed
duties or incorporated provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or excluded, as the case may be.
Section 114. No Recourse against Others.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities,
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting any of the Securities
waives and releases all such liability.
Section 115. Waiver of Trial by Jury.
To the extent permitted by applicable law, the Company, the Trustee, and
Holders hereby irrevocably and unconditionally waive the right to trial by jury
in connection with any claim arising out of or relating to the Securities and
under this Indenture.
ARTICLE II
SECURITIES FORMS
Section 201. Forms of Securities.
(a) The Registered Securities, if any, of each series, the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, shall have such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture or any indenture supplemental hereto, and
may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company,
as the case may be, may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any stock exchange on which the Securities may be listed,
or to conform to usage.
(b) Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
16
(c) The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on
a steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred to in
the within-mentioned Indenture.
[TRUSTEE]
as Trustee
By
-------------------------------------
Authorized Signatory
Dated:
------------------------------
Section 203. Securities Issuable in Global Form.
(a) If Securities of or within a series are issuable in global form,
as specified as contemplated by Section 301, then, notwithstanding clause
(8) of Section 301(b) and the provisions of Section 302, any such Security
shall represent such of the Outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased
to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall
be specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or
Section 304 has been, or simultaneously is, delivered, any instructions by
the Company with respect to endorsement, delivery or redelivery of a
Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
(b) The provisions of Section 303(h) shall apply to any Security
represented by a Security in global form if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by
17
an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
(c) Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global
form shall be made to the Person or Persons specified therein.
(d) Notwithstanding the provisions of Section 309 and except as
provided in Subsection (c) of this Section, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a permanent
global Security (1) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (2) in the case of a permanent global Security in bearer form,
Euroclear or Clearstream.
Section 204. Form of Legend for Book-Entry Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR
THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
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ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities shall rank equally and pari passu and may be issued
in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board
Resolutions and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except
for the matters set forth in clauses (1), (2) and (15) of this Section
301(b)), if so provided, may be determined from time to time by the Company
with respect to unissued Securities of the series and set forth in such
Securities of the series when issued from time to time):
(1) the title of the Securities of the series, including CUSIP
Numbers (which shall distinguish the Securities of such series from
all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305) and whether any series may be reopened for additional
Securities of that series; in the event that such series of Securities
may be reopened from time to time for issuances of additional
Securities of such series, the terms thereof shall indicate whether
any such additional Securities shall have the same terms as the prior
Securities of such series or whether the Company may establish
additional or different terms with respect to such additional
Securities;
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal (and premium,
if any,) of the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than on the basis of a 360-day year of
twelve 30-day months;
19
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the
series shall be payable, where any Registered Securities of the series
may be surrendered for registration of transfer, where Securities of
the series may be surrendered for exchange, where Securities of the
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable, and where notices or demands to
or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(6) the period or periods within which, or the date or dates on
which, the price or prices at which, the Currency or Currencies in
which, and other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the Currency or Currencies in which, and
other terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000 and any integral multiple thereof, the
denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any,
on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity
20
indices or other indices), and the manner in which such amounts shall
be determined;
(13) whether the principal of (or premium, if any) or interest,
if any, on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a Currency other than
that in which such Securities are denominated or stated to be payable,
the period or periods within which (including the Election Date), and
the terms and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between the
Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu of
any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants or other provisions (including any
deletions from, modifications of or additions to any of the provisions
of Section 1007) of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants or other
provisions are consistent with the Events of Default or covenants or
other provisions set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, any restrictions
applicable to the offer, sale or delivery of Bearer Securities,
whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to
be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities of the
series (if permitted by applicable laws and regulations), whether
Bearer Securities of the series may be exchanged for Registered
Securities of such series, and the circumstances under which and the
place or places where any such exchanges may be made and if Securities
of the series are to be issuable in global form, the identity of any
initial depository therefor;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
such Security (or
21
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally
mature, and the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date
will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and 1403 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article XIV;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether, under what circumstances and the Currency in which,
the Company will pay Additional Amounts as contemplated by Section
1005 on the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of such
term) in respect of any tax, assessment or governmental charge and, if
so, whether the Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such
option);
(22) the designation of the initial Exchange Rate Agent, if any;
(23) if the Securities of the series are to be convertible into
or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities of the
series will be so convertible or exchangeable (including, without
limitation, the initial conversion price or rate, the conversion
period, the conversion agent, if any, adjustments of the applicable
conversion price or rate and any requirements with respect to the
reservation of shares or Securities for purposes of conversion);
(24) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities
to be authenticated and delivered; and
(25) any other terms of the series (which terms shall not be
inconsistent with the requirements of the TIA).
(c) All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except
as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers' Certificate or in
any such indenture supplemental hereto. Not all Securities of any one
22
series need to be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances
of additional Securities of such series or to establish additional terms of
such series of Securities (which additional terms shall only be applicable
to unissued or additional Securities of such series).
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a
copy of an appropriate record of such action(s) shall be certified by the
Secretary or an Assistant Secretary or any Vice President of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
Section 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provision with respect to Securities of any series, the principal, premium and
interest and Additional Amounts with respect to the Securities shall be payable
in Dollars. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
(a) The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or Chief
Executive Officer. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any
future such authorized officer and may be imprinted or otherwise reproduced
on the Securities.
(b) Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
such Securities or coupons.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company, to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, that, in connection with its original issuance, no
Bearer Security shall be mailed or otherwise delivered to any location in
the United States; and provided further that, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, a Bearer
Security may be delivered in connection with its
23
original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in
Exhibit A-1 to this Indenture or such other certificate as may be specified
with respect to any series of Securities pursuant to Section 301, dated no
earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms
of such temporary Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of
this Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest
in such permanent global Bearer Security. Except as permitted by Section
306, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached
and cancelled. If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate, maturity date, date of issuance and date from which interest
shall accrue. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to TIA
Sections 315(a) through 315(d)) shall be fully protected in relying upon,
(1) an Opinion of Counsel stating,
(i) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture;
(ii) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(iii) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and
any coupons;
24
(2) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing; and
(3) an executed supplemental indenture (if any).
(d) Notwithstanding the provisions of Section 301 and of this Section
303, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, Opinion of Counsel
or Officers' Certificate otherwise required pursuant to Subsection (c) of
this Section at the time of issuance of each Security of such series, but
such order, opinion and certificates, with appropriate modifications to
cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
(e) The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee. Notwithstanding the generality of the foregoing, the Trustee
will not be required to authenticate Securities denominated in a Foreign
Currency if the Trustee reasonably believes that it would be unable to
perform its duties with respect to such Securities.
(f) Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
(g) No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed
by the Trustee or an Authenticating Agent by manual signature of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture.
(h) Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and
25
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which
they are issued, in registered form, or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global
form.
(b) Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(c) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any non-matured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations;
provided, that, no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
303. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(c) (1) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(c) shall govern the exchange of temporary
Securities issued in global form.
(2) If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depository"), for the benefit of
Euroclear and Clearstream, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as
they may direct).
(3) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate principal
amount equal to the principal amount of such temporary global
Security, executed by the Company. On or after the Exchange Date, such
temporary global Security shall be surrendered by the Common
Depository to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global
Security and upon receipt of the Company Order described in Section
303, an equal aggregate principal amount of definitive
26
Securities of the same series of authorized denominations and of like
tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for
any such temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, that, unless
otherwise specified in such temporary global Security, upon such
presentation by the Common Depository, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as
may be established pursuant to Section 301; and provided further that
definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the
requirements of Section 303.
(4) Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or Clearstream, as the case may
be, to request such exchange on his behalf and delivers to Euroclear
or Clearstream, as the case may be, a certificate in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee,
any Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person
at the offices of Euroclear or Clearstream. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
(5) Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by
Section 301, interest payable on a temporary global Security on an
Interest Payment Date for Securities of such series occurring prior to
the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear
and Clearstream to the Trustee of a certificate or certificates in the
form set forth in Exhibit A-2 to this Indenture
27
(or in such other forms as may be established pursuant to Section
301), for credit without further interest thereon on or after such
Interest Payment Date to the respective accounts of the Persons who
are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or
Clearstream, as the case may be, a certificate dated no earlier than
15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth in Exhibit A-1 to this Indenture
(or in such other forms as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this clause (5) of Section 304(c)
shall satisfy the certification requirements of clauses (3) and (4) of
this Section 304(c) and of Section 303(c) of this Indenture and the
interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same series
and of like tenor on the Exchange Date or the date of certification if
such date occurs after the Exchange Date, without further act or deed
by such beneficial owners. Except as otherwise provided in this clause
(5) of Section 304(c), no payments of principal (or premium, if any)
or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest
in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by
Euroclear and Clearstream and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company.
Section 305. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee or in any office or agency of the Company in a Place of
Payment a register for each series of Securities (the registers maintained
in such office or in any such office or agency of the Company in a Place of
Payment being herein sometimes referred to collectively as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose
of registering Registered Securities and transfers of Registered Securities
on such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
(b) Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency in a Place of Payment for
the register and transfer of Securities that series, the Company shall
execute, and the Trustee shall authenticate and deliver, subject to the
terms and conditions of this Article III, in the name of the designated
transferee or transferees, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate
principal amount, and tenor.
28
(c) At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in
exchange for Registered Securities.
(d) If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder,
Bearer Securities of any series may be exchanged for Registered Securities
of the same series of any authorized denomination and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished
to them such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series
and like tenor after the close of business at such office or agency on (i)
any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be, and interest
or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(e) Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
29
(f) Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301:
(1) Each global Security authenticated under this Indenture shall
be registered in the name of the Depository designated for such global
Security or a nominee thereof and delivered to such Depository or a
nominee thereof or custodian therefor, and each such global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a global Security in whole or in part
may be registered, in the name of any Person other than the Depository
for such global Security or a nominee thereof unless (A) such
Depository (i) has notified the Company that it is unwilling or unable
to continue as Depository for such global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, and in
either case the Company has not appointed a successor Depository
within 90 days of receipt of such notice or cessation, as the case may
be, (B) there shall have occurred and be continuing an Event of
Default with respect to such global Security or (C) there shall exist
such circumstances, if any, in addition to or in lieu of the foregoing
as have been specified for this purpose as contemplated by Section
301. Notwithstanding the foregoing, the Company may at any time in its
sole discretion determine that Securities issued in the form of a
global Security shall no longer be represented in whole or in party by
such global Security, and the Trustee, upon receipt of a Company Order
therefor, shall authenticate and deliver definitive Securities in
exchange in whole or in part for such Global Security.
(3) Subject to clause (2) above, any exchange or transfer of a
global Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a global Security or any
portion thereof shall be registered in such names as the Depository
for such global Security shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a global Security or
any portion thereof, whether pursuant to this Section, Section 304,
306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a global Security, unless such Security is
registered in the name of a Person other than the Depository for such
global Security or a nominee thereof.
(5) If any beneficial owner of an interest in a permanent global
Security is entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 301 and
this Section 305 and provided that any applicable notice provided in
the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on
which such interest may be so exchanged, the Company shall deliver to
30
the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such
permanent global Security, executed by the Company. On or after the
earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common
Depository or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such
permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to
be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as
specified as contemplated by Section 301, shall be in the form of
Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
provided, that, no such exchanges may occur during a period beginning
at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered
in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If
a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or
agency where such exchange occurs on (1) any Regular Record Date and
before the opening of business at such office or agency on the
relevant Interest Payment Date, or (2) any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest in respect of such portion of
such permanent global Security is payable in accordance with the
provisions of this Indenture.
(g) All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
(h) Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(i) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to
31
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
(j) The Company shall not be required (1) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of
business 15 days before, and ending at the close of business on (i) if such
Securities are issuable only as Registered Securities, the day of the
mailing of the relevant notice of redemption and (ii) if such Securities
are issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if such Securities are also issuable as
Registered Securities and there is no publication, the mailing of the
relevant notice of redemption, or (2) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in
part, except, in the case of any Registered Security to be redeemed in
part, the unredeemed portion thereof, or (3) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may
be exchanged for a Registered Security of that series and like tenor,
provided that such Registered Security shall be simultaneously surrendered
for redemption, or (4) to issue, register the transfer of or exchange any
Security which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Security not to be so repaid.
(k) Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange
or assignment of such Holder's Security in violation of any provision of
this Indenture and/or applicable United States Federal or state securities
law.
(l) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among
Depository Participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount, and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.
32
(b) If there shall be delivered to the Company and to the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (2) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost
or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
(c) Notwithstanding the provisions of the Sections 306(a) and (b), in
case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or
stolen coupon appertains, pay such Security or coupon; provided, that,
payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
(d) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security of any series, together with its coupons, if
any, issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Security, or in exchange for a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether or not
the mutilated, destroyed, lost or stolen Security and its coupons, if any,
or the mutilated, destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
(f) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
33
Section 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest, if
any, on any Registered Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided, that, each installment of interest, if
any, on any Registered Security may at the Company's option be paid by (1)
mailing a check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 309, to the address of such
Person as it appears on the Security Register or (2) transfer to an account
located in the United States maintained by the payee.
(b) Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may
be made, in the case of a Bearer Security, by transfer to an account
located outside the United States maintained by the payee.
(c) Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream
with respect to that portion of such permanent global Security held for its
account by the Common Depository, for the purpose of permitting each of
Euroclear and Clearstream to credit the interest, if any, received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
(d) In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency)
on the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of
the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(e) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest
on any Registered Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) of
this Subsection:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or
34
their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment (which shall not be less
than 20 days after such notice is received by the Trustee), and at the
same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2) of
this Subsection. In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such
series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
35
(f) The provisions of this Section 307(f) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section
301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series
may be reset by the Company on the date or dates specified on the face of
such Security (each an "Optional Reset Date"). The Company may exercise
such option with respect to such Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to an Optional Reset
Date for such Security. Not later than 40 days prior to each Optional Reset
Date, the Trustee shall transmit, in the manner provided for in Section
106, to the Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (1) such new interest rate (or such new spread or
spread multiplier, if applicable) and (2) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next
Optional Reset Date or if there is no such next Optional Reset Date, to the
Stated Maturity of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
(g) Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable) provided for in the Reset Notice and establish a
higher interest rate (or a spread or spread multiplier providing for a
higher interest rate, if applicable) for the Subsequent Interest Period by
causing the Trustee to transmit, in the manner provided for in Section 106,
notice of such higher interest rate (or such spread or spread multiplier
providing for a higher interest rate, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) is reset on an Optional Reset
Date, and with respect to which the Holders of such Securities have not
tendered such Securities for repayment (or have validly revoked any such
tender) pursuant to Section 307(h), will bear such higher interest rate (or
such spread or spread multiplier providing for a higher interest rate, if
applicable).
(h) The Holder of any such Security may have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article XIII for repayment at the option of Holders except that the period
for delivery or notification to the Trustee shall be at least 25 but not
more than 35 days prior to such Optional Reset Date and except that, if the
Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such
tender or repayment until the close of business on the tenth day before
such Optional Reset Date.
(i) Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for
36
or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Optional Extension of Maturity.
(a) The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section
301). The Stated Maturity of any Security of such series may be extended at
the option of the Company for the period or periods specified on the face
of such Security (each an "Extension Period") up to but not beyond the date
(the "Final Maturity") set forth on the face of such Security. The Company
may exercise such option with respect to any Security by notifying the
Trustee of such exercise at least 45 but not more than 60 days prior to the
Stated Maturity of such Security in effect prior to the exercise of such
option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section
106, to the Holder of such Security not later than 40 days prior to the
Original Stated Maturity a notice (the "Extension Notice") indicating (i)
the election of the Company to extend the Stated Maturity, (ii) the new
Stated Maturity, (iii) the interest rate (or spread, spread multiplier or
other formula used to calculate such interest rate, if applicable), if any,
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of
the Extension Notice, the Stated Maturity of such Security shall be
extended automatically and, except as modified by the Extension Notice and
as described in Section 308(b), such Security will have the same terms as
prior to the transmittal of such Extension Notice.
(b) Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate (or spread, spread multiplier or other formula
used to calculate such interest rate, if applicable) provided for in the
Extension Notice and establish a higher interest rate (or spread, spread
multiplier or other formula used to calculate such higher interest rate, if
applicable) for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 106, notice of such higher interest rate
(or spread, spread multiplier or other formula used to calculate such
interest rate, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the Stated
Maturity is extended will bear such higher interest rate.
(c) If the Company extends the Stated Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal
amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company has extended the
Stated Maturity thereof, the Holder must follow the procedures set forth in
Article XIII for repayment at the option of Holders, except that the period
for delivery or notification to the Trustee shall be at least 25 but not
more than 35 days prior to the Original Stated Maturity and except that, if
the Holder has tendered any Security for repayment pursuant to an Extension
Notice, the Holder may by written notice to the Trustee revoke such tender
for repayment until the close of business on the tenth day before the
Original Stated Maturity.
37
Section 309. Persons Deemed Owners.
(a) Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company, or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Registered Security and for
all other purposes whatsoever, whether or not such Registered Security be
overdue, and none of the Company, the Trustee nor any agent of the Company,
or the Trustee shall be affected by notice to the contrary.
(b) Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company, or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and none of the Company, the Trustee nor any agent of the Company,
or the Trustee shall be affected by notice to the contrary.
(c) None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(d) Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any
agent of the Company, or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as
a Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of
such depositary (or its nominee) as Holder of such global Security.
Section 310. Cancellation.
(a) All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange
or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to
the Trustee for any such purpose shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of
the Securities, however, such acquisition shall not operate as a redemption
or
38
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be disposed of by the Trustee in its customary manner, unless
by a Company Order the Company directs that cancelled Securities be
returned to the Company.
Section 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect
to Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 312. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant
to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in Subsection (b) of this Section or
the Holders of which have not made the election provided for in Subsection
(b) of this Section, and with respect to Bearer Securities of any series,
except as provided in Subsection (d) of this Section, payment of the
principal of (and premium, if any) and interest, if any, on any Registered
or Bearer Security of such series will be made in the Currency in which
such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded
with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to Subsection (d) and (e) of this Section, to receive payments of
principal of (or premium, if any) or interest, if any, on such Registered
Securities in any of the Currencies which may be designated for such
election by delivering to the Trustee a written election with signature
guarantees and in the applicable form established pursuant to Section 301,
not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive
such payments in any such Currency, such election will remain in effect for
such Holder or any transferee of such Holder until changed by such Holder
or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment
to be made on such payment date and no such change of election may be made
with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or with
respect to which the Company has deposited funds pursuant to Article IV or
XIV or with respect to which a notice of redemption has been given by the
Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the
applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Subsection (a) of this
Section. The Trustee shall
39
notify the Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities for which
Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in Subsection (b) of this Section has been provided
for pursuant to Section 301, then, unless otherwise specified pursuant to
Section 301, not later than the fourth Business Day after the Election Date
for each payment date for Registered Securities of any series, the Exchange
Rate Agent will deliver to the Company a written notice specifying the
Currency in which Registered Securities of such series are payable, the
respective aggregate amounts of principal of (and premium, if any) and
interest, if any, on the Registered Securities to be paid on such payment
date, specifying the amounts in such Currency so payable in respect of the
Registered Securities as to which the Holders of Registered Securities of
such Series shall have elected to be paid in another Currency as provided
in Subsection (b) of this Section. If the election referred to in
Subsection (b) of this Section has been provided for pursuant to Section
301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for
such series of Registered Securities an Exchange Rate Officer's Certificate
in respect of the Dollar or Foreign Currency payments to be made on such
payment date. Unless otherwise specified pursuant to Section 301, the
Dollar or Foreign Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in Subsection
(b) of this Section shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the second Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent
manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant
to an election provided for pursuant to Subsection (b) of this Section,
then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any on the applicable Securities
denominated or payable in such Foreign Currency occurring after the last
date on which such Foreign Currency was used (the "Conversion Date"), the
Dollar shall be the currency of payment for use on each such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar amount to be
paid by the Company to the Trustee and by such Trustee or any Paying Agent
to the Holders of such Securities with respect to such payment date shall
be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in Subsection
(f) or (g) of this Section.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any Currency shall have elected to
be paid in another Currency as provided in Subsection (b) of this Section,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have
been made in the absence of such election; and if a Conversion Event occurs
with respect to the Currency in which payment would have
40
been made in the absence of such election, such Holder shall receive
payment in Dollars as provided in Subsection (d) of this Section.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of Subsection (h)
of this Section shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with
respect to each payment.
(h) For purposes of this Section 312, the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the euro.
A "Specified Amount" of a Component Currency shall mean the number of units
of such Component Currency or fractions thereof which were represented in the
relevant currency unit, including, but not limited to, the euro, on the
Conversion Date. If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single Currency
equal to the sum of the respective Specified Amounts of such consolidated
Component Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the date of
such replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before such
division, and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited to, the euro, a
Conversion Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as the
case may be, or such other prior
41
date for any series of Registered Securities as specified pursuant to clause 13
of Section 301 by which the written election referred to in Section 312(b) may
be made.
(i) All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and changes in
the Specified Amounts as specified above shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive for all purposes
and irrevocably binding upon the Company, the Trustee and all Holders of
such Securities denominated or payable in the relevant Currency. The
Exchange Rate Agent shall promptly give written notice to the Company and
the Trustee of any such decision or determination.
(j) In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the
Company will immediately give written notice thereof to the Trustee and to
the Exchange Rate Agent (and such Trustee will promptly thereafter give
notice in the manner provided for in Section 106 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that
a Conversion Event has occurred with respect to the euro or any other
currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee and to the
Exchange Rate Agent (and such Trustee will promptly thereafter give notice
in the manner provided in Section 106 to the affected Holders) specifying
the Conversion Date and the Specified Amount of each Component Currency on
the Conversion Date. In the event the Company determines in good faith that
any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee and the Exchange Rate Agent.
(k) The Trustee of the appropriate series of Securities shall be fully
justified and protected in conclusively relying and acting upon information
received by it from the Company and the Exchange Rate Agent and shall not
otherwise have any duty or obligation to determine the accuracy or validity
of such information independent of the Company or the Exchange Rate Agent.
Section 313. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so long
as the Securities of any series (1) are denominated in a Foreign Currency
or (2) may be payable in a Foreign Currency, or so long as it is required
under any other provision of this Indenture, then the Company will maintain
with respect to each such series of Securities, or as so required, at least
one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to
make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of
converting the issued Foreign Currency into the applicable payment Currency
for the payment of principal (and premium, if any) and interest, if any,
pursuant to Section 312.
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(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company
and the Trustee of the appropriate series of Securities accepting such
appointment executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents
with respect to the Securities of that or those series (it being understood
that any such successor Exchange Rate Agent may be appointed with respect
to the Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 301, at any time there shall only
be one Exchange Rate Agent with respect to the Securities of any particular
series that are originally issued by the Company on the same date and that
are initially denominated and/or payable in the same Currency).
Section 314. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that, any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. 401. Satisfaction and Discharge of Indenture.
(a) Unless otherwise specified pursuant to Section 301, this Indenture
shall upon Company Request cease to be of further effect with respect to
any series of Securities specified in such Company Request (except as to
any surviving rights of registration of transfer or exchange of Securities
of such series expressly provided for herein or pursuant hereto and any
right to receive Additional Amounts, as provided in Section 1005), and the
Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(i) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (A) coupons appertaining to Bearer Securities
surrendered for exchange for
43
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in
Section 305, (B) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (C) coupons appertaining to
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 1106, and (D) Securities and coupons of such series for
whose payment money has theretofore been deposited with the
Trustee or any Paying Agent in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in the case of
subclause (A) or (B) of this clause (ii), any coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense,
of the Company, and the Company, in the case of subclause
(A), (B) or (C) of this clause (ii), has irrevocably
deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the
Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on
such Securities and such coupons not theretofore delivered
to the Trustee for cancellation, including the principal
(and premium, if any) and interest, if any, to the date of
such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor Trustee
under Section
44
606, the obligations of the Company to any Authenticating Agent under
Section 611 if money shall have been deposited with the Trustee pursuant to
clause (1) of Section 401(a), the obligations of the Trustee under Section
402 and Section 1003(d) and the obligations of the Company and the Trustee
with respect to Securities of such series under Sections 305, 306, 1002 and
1005, with respect to the payment of Additional Amounts, if any, with
respect to any rights of Holders to require the Company to repay such
Securities as contemplated by Section 1301 and with respect to any rights
of Holders to convert or exchange such Securities into other Securities,
shall survive such satisfaction and discharge. These obligations shall
continue to be governed and construed in accordance with Section 111.
Section 402. Application of Trust Funds.
Subject to the provisions of Section 1003(d), all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE V
REMEDIES
Section 501. Events of Default.
(a) "Event of Default", wherever used herein with respect to any
particular series of Securities, means any one of the following events as
such events may be otherwise amended in accordance with Section 301
(whatever the reason for such Event of Default and whether or not it shall
be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon, or any
Additional Amount payable in respect of, any Security of that series
or of any coupon appertaining thereto, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture with respect to any
Security of that series (other than a covenant or agreement a default
in whose performance or
45
whose breach is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceedings,
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceedings,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) issues a public announcement admitting its inability to
pay its debts generally as they become due; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary
case,
(ii) appoints a Custodian of the Company or for all or
substantially all of its property, or
(iii) orders the winding-up or liquidation of the Company,
(iv) and the order or decree remains unstayed and in effect
for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
(b) The term "Bankruptcy Law" means title 11, U.S. Code, as amended
from time to time, or any similar foreign, Federal or State law for the
relief of debtors. The term "Custodian" means any custodian, receiver,
trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
46
Section 502. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than an Event of Default specified
in clauses (5) and (6) of Section 501(a) with respect to the Company) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal (or, if any Securities are Original Issue
Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) plus accrued and
unpaid interest of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by the Holders), and upon any such declaration such principal amount
plus accrued and unpaid interests or specified portion thereof shall become
immediately due and payable. If an Event of Default specified in clauses
(5) and (6) of Section 501(a) with respect to the Company occurs, the
amounts described above with respect to the Outstanding Securities of all
series shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. Upon
payment of such principal and interest, all of the Company's obligations
under the Securities of such Series and this Indenture, other than
obligations under Section 606, shall terminate.
(b) At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient in cash to pay all principal, interest and Additional
Amounts which have become due other than by such declaration of
acceleration, interest or any such overdue amounts, and amounts owing
the Trustee;
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if
any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 514; and
(3) such rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that if:
47
(1) default is made in the payment of any installment of interest
or Additional Amounts on any Security of any series and any related
coupon when such interest or Additional Amounts becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon
Securities of such series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities of such series, wherever situated.
(c) If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series and any related coupons by such appropriate judicial
proceedings as the Trustee shall deem necessary to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company, or any
other obligor upon the Securities or the property of the Company, or of
such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the
payment of any overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal
and premium, if any, or in the case of Original Issue Discount
Securities or Indexed
48
Securities, such portion of the principal as may be provided for in
the terms thereof and premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 606.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
49
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest, if
any, 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 aggregate amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and Additional Amounts, if Any.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, and Additional Amounts, if any, on such
Security or payment of such coupon on the respective due dates expressed in such
Security or coupon (or, in the case of redemption, on the Redemption
50
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306(f), no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
Section 512. Control by Holders of Securities.
With respect to any series, the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
51
(c) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
Section 513. Undertaking for Costs.
All parties to this Indenture agree that in any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorney's fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant, provided that this Section 513
shall not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
508 hereof, or a suit by Holders of more than 10% in principal amount of the
then Outstanding Securities.
Section 514. Waiver of Past Defaults.
(a) The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, or Additional Amounts on any Security of such series
or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
(b) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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ARTICLE VI
THE TRUSTEE
Section 601. Notice of Defaults.
Within five days after the earlier of receipt from the Company of notice of
the occurrence of a Default or Event of Default hereunder or the date such
occurrence hereunder actually becomes known to a Responsible Officer of the
Trustee, the Trustee shall transmit to all Holders of Securities of such series,
in the manner and to the extent provided in TIA Section 313(c), notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of
such series, or in the payment of any sinking or purchase fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any Default or breach of the character
specified in clause (4) of Section 501(a) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least
60 days after the occurrence thereof unless otherwise specified in accordance
with Section 301.
Section 602. Certain Rights of Trustee.
(a) Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(3) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(4) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.
53
(5) 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 of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in
Sections 101 and 104.
(6) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a Board Resolution, an
Opinion of Counsel or an Officers' Certificate.
(7) The Trustee may consult with counsel of its choosing and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(8) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
(9) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney but in the
case of any certificate or opinion specifically required by the
Indenture to be delivered to the Trustee, the Trustee shall have a
duty to examine the same to determine whether they conform to the
Indenture requirements.
(10) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(11) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture other than any liabilities arising out of the
negligence of the Trustee.
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(12) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.
(13) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
(b) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or
any other agent of the Company in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
Section 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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Section 606. Compensation and Reimbursement.
(a) The Company agrees:
(1) to pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as shall be agreed upon in
writing from time to time (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by
its own negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any and all loss, damage,
claims, liability or expense incurred without negligence or bad faith
on its own part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if
any) or interest, if any, on particular Securities or any coupons.
(c) When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (5) or (6) of Section 501(a) occurs,
the expenses and compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
56
Section 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a
Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of a
notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed or any Holder who has been a bona fide Holder of
Securities for at least six months, may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect
57
to the Securities of one or more or all of such series and that at any
time, except as provided in Section 613, there shall be only one Trustee
with respect to the Securities of any particular series). If, within one
year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security
who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which
(1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates,
58
(2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
59
Section 611. Appointment of Authenticating Agent.
(a) At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be reasonably acceptable to the
Company and, except as may otherwise be provided pursuant to Section 301,
shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of
America or of any State or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements
of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
(b) Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or further act on the part of the Trustee or the
Authenticating Agent.
(c) An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to
the Company and shall give notice of such appointment to all Holders of
Securities of the series with respect to which
60
such Authenticating Agent will serve in the manner set forth in Section
106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
(d) The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
(e) If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
--------------------------------------
as Trustee
By
-------------------------------------
as Authenticating Agent
By
-------------------------------------
Authorized Signatory
Section 612. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the Trust
Indenture Act.
Section 613. Appointment of Co-Trustee.
(a) For the purpose of meeting any legal requirements of any
jurisdiction in which the Company may at the time be located in connection
with the enforcement of any right or the taking of any action on behalf of
the Holders of any Securities issued hereunder, the Trustee shall have the
power and may execute and deliver all instruments necessary to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee
or separate trustees, such powers, duties, obligations, rights and trusts
as the Trustee may consider necessary or desirable. Each co-trustee or
separate trustee hereunder shall be required to meet the terms of
eligibility as a trustee under Section 607. The Trustee shall promptly
notify the Holders and the Company of the appointment of a co-trustee or
separate trustee under this section.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
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(1) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(2) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder;
(3) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee;
(4) any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Indenture and the conditions of this Article VI. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions
of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or
affording protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee. Every
such instrument shall be filed with the Trustee; and
(5) any separate trustee or co-trustee may at any time constitute
the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Indenture on its behalf and in its name
for the purposes of enforcing any rights or taking any other action on
behalf of the Holders of any Securities issued hereunder.
Section 614. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to and
shall take all actions necessary to comply with the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
Section 615. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such
62
omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than five Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action
(or the effective date in the case of an omission), the Trustee shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.
(a) The Company will furnish or cause to be furnished to the Trustee:
(1) semiannually, not later than 15 days after each Regular
Record Date for Securities of each series at the time Outstanding, a
list in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities as of such
Regular Record Date, or if there is no Regular Record Date for
interest for such series of Securities, semiannually, upon such dates
as are set forth in the Board Resolution, Officers' Certificates
indenture supplemental hereto authorizing such series, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, that, so long as
the Trustee is the Security Registrar, no such list shall be required
to be furnished.
(b) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(c) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
(d) Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities
in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held
63
accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
Section 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit by mail to all Holders of Securities as provided in TIA Section
313(c) a brief report dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders,
be filed by the Trustee with each stock exchange, if any, upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee of the listing or de-listing of the Securities
on any stock exchange.
Section 703. Reports by Company.
(a) The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time
in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to clauses (1) and (2) of this Section 703(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Delivery of such reports, information and documents to the Trustee
pursuant to Section 703(a) is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or
64
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 704. Calculation of Original Issue Discount.
Upon request of the Trustee, the Company shall file with the Trustee
promptly at the end of each calendar year
(a) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year and
(b) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all of the obligations of the Company under this Indenture and on all the
Securities;
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(c) the Company and the successor Person have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted.
(a) Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the
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Company is merged or the successor Person to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein; and in
the event of any such conveyance or transfer (except by a lease), the
Company shall be discharged from all its obligations and covenants under
this Indenture and the Securities and coupons and may be dissolved and
liquidated.
(b) Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of
such successor entity, instead of the Company, and subject to all the
terms, conditions and limitations prescribed in this Indenture, the Trustee
shall authenticate and shall deliver any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities of any series so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
of such series theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
(c) In case of any such merger in which the Company is not the
surviving corporation or any such consolidation, sale, lease, assignment,
transfer or conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
Section 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, conveyance, assignment, transfer or lease
permitted under Section 801 is also subject to the condition that the Trustee
shall have received an Officers' Certificate and an Opinion of Counsel to the
effect that any such consolidation, merger, sale, conveyance, transfer,
assignment or lease, and the assumption by any successor Person and any such
supplemental indenture, comply with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, that, in respect of any such additional
Events of Default 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 default or may limit the remedies available to the
Trustee upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive such
default; or
(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(e) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(f) to secure the Securities pursuant to the requirements of such
indenture supplement, if applicable; or
(g) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or
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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; or
(i) to close this indenture with respect to the authentication and
delivery of additional series of Securities, to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided that such
action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(j) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or
(k) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 902. Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such
supplemental indenture, with each series voting separately, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture which affects such series of Securities or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, that, no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of
such series affected thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any, on) or any installment of principal of or interest on, any
Security, subject to the provisions of Section 308; or reduce the
principal amount thereof (or premium, if any) or the rate of interest
(or change the manner of calculation of interest), thereon, or any
Additional Amounts with respect thereto, or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 1005 (except as contemplated by
Section 801(a) and permitted by Section 901(a)), or reduce the amount
of the principal of an Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the Currency in
which, any Security or any premium or interest or Additional Amount
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or
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after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date
or the Repayment Date, as the case may be), or adversely affect any
right to convert or exchange any Security as may be provided pursuant
to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 514 or
Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture that affect such
series cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby, or
(4) cause the Securities to be expressly subordinated to other
indebtedness of the Company.
(b) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
(c) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
(d) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders at
the close of Business on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after
such record date; provided that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior
to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon (subject to the
69
provisions of Article VI hereof), an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest and Additional Amounts, if any, on the Securities
of that series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Any interest due on Bearer
Securities on or before Maturity, other than Additional Amounts, if any, payable
as provided in Section 1005 in respect of principal of (or premium, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security or
wire transfer to an account in the United States maintained by the Payee.
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Section 1002. Maintenance of Office or Agency.
(a) If Securities of a series are issuable only as Registered
Securities, the Company shall maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain:
(1) in the Borough of Manhattan, The City of New York, an office
or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities
of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the
clause (2) of this Subsection (and not otherwise),
(2) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment;
provided, that, if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series
in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series
are listed on such exchange, and
(3) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable and where notices and demands to
or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location,
of each such office or agency.
(b) If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of
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the Trustee, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, England, and the Company hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices
and demands.
(c) Unless otherwise specified with respect to any Securities pursuant
to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, that, if the Securities of a series are payable in Dollars,
payment of principal of (and premium, if any) and interest, if any, on any
Bearer Security shall be made at the office of the Company's Paying Agent
in the Borough of Manhattan, The City of New York, if (but only if) payment
in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States
maintained for such purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or
other similar restrictions.
(d) The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; provided, that, no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities the office
or agency of the Company in the Borough of Manhattan, The City of New York,
and initially appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
(e) Unless otherwise specified with respect to any Securities pursuant
to Section 301, if and so long as the Securities of any series
(1) are denominated in a Currency other than Dollars,
(2) may be payable in a Currency other than Dollars, or
(3) so long as it is required under any other provision of the
Indenture,
the Company will maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent.
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Section 1003. Money for Securities Payments to be Held in Trust.
(a) If the Company or any Subsidiary or any Affiliate of any of them
shall at any time act as Paying Agent with respect to any series of any
Securities and any related coupons, it will, on or before each due date of
the principal of (or premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the
principal (and premium, if any) and interest, if any, on Securities of such
series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each
due date of the principal of (or premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum (in the
Currency described in Section 1003(a)) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium
or interest and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(c) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
(d) Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any)
or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Company upon Company Request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment of such principal, premium or interest on any
Security, without interest thereon, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, that, the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment for such series, or mailed
to each Holder of Registered Securities of such series, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date
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of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article VIII, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and material rights and franchises (charter and statutory); provided,
that, neither the Company shall be required to preserve any such right or
franchise if it shall determine that the preservation thereof is no longer
necessary or desirable in the conduct of the business of the Company; and
provided further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of the Indenture.
Section 1005. Additional Amounts.
(a) If any Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of a Security of
such series or any coupon appertaining thereto Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest, if any, on any Security of any series or payment of
any related coupon or the net proceeds received on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention
of the payment of Additional Amounts provided by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
(b) Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series will not
bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date
of payment of principal, premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal, premium or interest on the
Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company
will pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. In the event that the Trustee or
any Paying Agent, as the case may be, shall not so receive
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the above-mentioned certificate, then the Trustee or such Paying Agent
shall be entitled (1) to assume that no such withholding or deduction is
required with respect to any payment of principal of (or premium, if any)
or interest with respect to any Securities of a series or related coupons
until it shall have received a certificate advising otherwise and (2) to
make all payments of principal of (or premium, if any) and interest with
respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
Section 1006. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture and, if the Company is in default, specifying all such defaults
and the nature and status thereof of which he or she may have knowledge. For
purposes of this Section 1006, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
Section 1007. Waiver of Certain Covenants.
With respect to the Securities of any series, the Company may omit in any
particular instance to comply with any term, provision or condition specified
pursuant to Section 301 as being subject to this Section 1007, if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all Outstanding Securities of such series affected by such
term, provision or condition, by Act of such Holders, waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 1008. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in any
event within ten days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
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ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
(a) If less than all the Securities of any series issued on the same
day with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series issued
on such date with the same terms not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series.
(b) The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
(c) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
Section 1104. Notice of Redemption.
(a) Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 days nor more than 60 days prior to the
Redemption Date, unless a
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shorter period is specified by the terms of such series established
pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of
any Security designated for redemption as a whole or in part, or any defect
in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion
thereof.
(b) Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. All notices of
redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest, if
any, to the Redemption Date payable as provided in Section 1106,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee for such series and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption
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on this Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges may be
made, and
(10) the CUSIP number of such Security, if any.
(c) Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
XII, segregate and hold in trust as provided in Section 1003) an amount of money
in the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (unless
otherwise specified pursuant to Section 301) accrued and unpaid interest, if
any, on, all the Securities or portions thereof which are to be redeemed on that
date.
Section 1106. Securities Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid, the
Securities of any series so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities shall if the same were interest-bearing cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, that, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further that
installments of interest on Registered Securities whose Stated Maturity is
prior to (or, if specified pursuant to Section 301, on) the Redemption Date
shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
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(b) If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, that, interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
(c) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest set forth in such Security or, in the case of an Original Issue
Discount Security, at the Yield to Maturity of such Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article XII) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge a
new Security or Securities of the same series, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
However, if less than all the Securities of any series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date.
ARTICLE XII
SINKING FUNDS
Section 1201. Applicability of Article.
(a) The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
(b) The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the
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terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
Except as otherwise specifically contemplated by Section 301 for Securities
of such series, the Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series, (a)
deliver Outstanding Securities of such series (other than any previously called
for redemption) together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (b) apply as a credit
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be added in cash to
the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
Section 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at the Repayment Price thereof, together with
interest, if any, thereon accrued to the Repayment Date specified in or pursuant
to the terms of such Securities. The Company covenants that on or before the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Company or any Subsidiary or any Affiliate of any of them is acting as
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay the Repayment Price of, and (unless otherwise
specified pursuant to Section 301) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
Section 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire Repayment Price of such Security is to
be repaid in accordance with the terms of such Security, the portion of the
Repayment Price of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
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Section 1304. When Securities Presented for Repayment Become Due and
Payable.
(a) If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities,
such Securities or the portions thereof, as the case may be, to be repaid
shall become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such Repayment Date
(unless the Company shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be repaid, except to the extent provided below,
shall be void. Upon surrender of any such Security for repayment in
accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the Repayment Price
of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided, that,
coupons whose Stated Maturity is on or prior to the Repayment Date shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified pursuant to Section 301, only upon presentation and surrender of
such coupons; and provided further that installments of interest on
Registered Securities, whose Stated Maturity is prior to (or, if specified
pursuant to Section 301, on) the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
(b) If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor
as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the
preceding sentence, such Holder shall be entitled to receive the amount so
deducted; provided, that, interest represented by coupons shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
(c) If any Security surrendered for repayment shall not be so repaid
upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the
Yield to Maturity of such Security.
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Section 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of or within a series under Section 1402 or (b)
covenant defeasance of the Securities of or within a series under Section 1403,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 1402. Defeasance and Discharge.
(a) Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company
shall each be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any coupons appertaining thereto
on the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that
the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this
Indenture referred to in clauses (a) and (b) of this Section 1402, and to
have satisfied all its other obligations under such Securities and any
coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder:
(1) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section,
payments in respect of
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the principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are
due,
(2) the obligations of the Company with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1005 with respect to the rights,
if any, of the holders of such Securities to require the Company to
repay such Securities as contemplated by Article XIII and with respect
to the rights, if any, of holders to convert or exchange such
Securities into other Securities,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and
(4) subject to compliance with this Article XIV, the Company may
exercise its option under this Section 1402 notwithstanding the prior
exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall each be
released from its obligations under any other covenant specified pursuant to
Section 301, with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section
1404 are satisfied (hereinafter, "covenant defeasance"), and such Securities and
any coupons appertaining thereto shall thereafter be deemed to not be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with any
applicable covenant, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under clauses (4) or (7) of Section
501(a) or otherwise except as specified in accordance with Section 301, as the
case may be, but, except as specified above, the remainder of this Indenture and
such Securities and any coupons appertaining thereto shall be unaffected
thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall
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agree to comply with the provisions of this Article XIV applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities and any coupons appertaining thereto, (1)
an amount (in such Currency in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity), or
(2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and coupons appertaining thereto are then specified as payable
at Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of principal of
(and premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, sufficient, in the opinion of a nationally recognized
firm of independent public accountants or nationally recognized independent
investment banking firm expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Default or Event of Default with respect to such Securities and
any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as clauses (5) and (6) of Section
501(a) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (1) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (2) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such
85
Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
Section 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
(a) Subject to the provisions of Section 1003(d), all money and
Government Obligations (or other property as may be provided pursuant to
Section 301) (including the proceeds thereof) deposited with the Trustee
(or other qualifying trustee, collectively for purposes of this Section
1405, the "Trustee") pursuant to Section 1404 in respect of any Outstanding
Securities of any series and any coupons appertaining thereto shall be held
in trust and applied by the Trustee, in accordance with the provisions of
such Securities and any coupons appertaining thereto and this Indenture, to
the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to
the Holders of such Securities and any coupons appertaining thereto of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, if any, but such money need not be segregated from other
funds except to the extent required by law.
(b) Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (1) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the
terms of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (2) a Conversion Event occurs as contemplated in Section
312(d) or 312(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through
the payment of the principal of (and premium, if any) and interest, if any,
on such Security as the same becomes due out of the proceeds yielded by
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converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the second Business Day prior
to each payment date, except, with respect to a Conversion Event, for such
Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
(c) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding
Securities and any coupons appertaining thereto.
(d) Anything in this Article XIV to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
Section 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, that if the Company makes any payment of
principal of (or premium, if any) or interest, if any, on any such Security or
any related coupon following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities and any
related coupons to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
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Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may
be, may determine the time and the place in the Borough of Manhattan, The
City of New York or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in Subsection (a) of
this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action.
(a) The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, that if any action is to
be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned
88
meeting may be further adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall
be given as provided in Section 1502(a), except that such notice need be
given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which
shall constitute a quorum.
(b) Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in
principal amount of the Outstanding Securities at the time shall constitute
a quorum for the taking of any action set forth in the notice of the
original meeting.
(c) Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series; provided, that except as limited by
the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of not less
than such specified percentage in principal amount of the Outstanding
Securities of that series.
(d) Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
(e) Notwithstanding the foregoing provisions of this Section 1504, if
any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for such
meeting; and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
89
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any provisions of this Indenture, the Company may
make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Company shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by
Holders of Securities as provided in Section 1502(b), in which case the
Holders of Securities of the series calling the meeting shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
that, no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at
90
least in duplicate, of the proceedings of each meeting of Holders of Securities
of any series shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502(a) and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the former to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
91
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
MOLINA HEALTHCARE, INC.
By:
------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
Signature Page to Indenture
EXHIBIT A
FORMS OF CERTIFICATES
A-1
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate the income of which is subject
to United States federal income taxation regardless of its source or a trust
whose administration is subject to the primary supervision of a United States
court and which has one or more United States persons who have the authority to
control all of its decisions ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise Molina Healthcare, Inc. or its agent
that such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]_______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and
A-1-1
delivery of definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
------------------------------
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to
the Exchange Date, as applicable]
[Name of Person Making Certification]
By:
------------------------------------
(Authorized Signatory)
Name:
Title:
A-1-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM BANKING SOCIETE ANONYME IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN
INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]__________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate the income of which is subject to United States
Federal income taxation regardless of its source or a trust whose administration
is subject to the primary supervision of a United States court and which has one
or more United States persons who have the authority to control all of its
decisions ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Molina
Healthcare, Inc. or its agent that such financial institution will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-2-1
We understand that this certification is required in connection with certain tax
legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:
-----------------------------
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment
Date occurring prior to the
Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New
York, Brussels Office,] as Operator of
the Euroclear System
[Clearstream Banking societe anonyme]
By:
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A-2-2