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EXHIBIT 4.7
GOLDEN WEST FINANCIAL CORPORATION
TO
BANKERS TRUST COMPANY
TRUSTEE
SENIOR DEBT INDENTURE
DATED AS OF AUGUST 8, 2001
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ARTICLE One Definitions and Other Provisions of General Application............1
Section 101. Definitions........................................................1
Section 102. Compliance Certificates and Opinions...............................8
Section 103. Form of Documents Delivered to Trustee.............................9
Section 104. Acts of Holders....................................................9
Section 105. Notices, Etc., to Trustee and Company.............................11
Section 106. Notice to Holders of Securities; Waiver...........................11
Section 107. Language of Notices, Etc..........................................12
Section 108. Conflict with Trust Indenture Act.................................12
Section 109. Effect of Headings and Table of Contents..........................12
Section 110. Successors and Assigns............................................12
Section 111. Separability Clause...............................................12
Section 112. Benefits of Indenture.............................................13
Section 113. Governing Law.....................................................13
Section 114. Legal Holidays....................................................13
ARTICLE Two Security Forms....................................................13
Section 201. Forms Generally...................................................13
Section 202. Form of Trustee's Certificate of Authentication...................14
Section 203. Securities in Global Form.........................................14
ARTICLE Three The Securities....................................................15
Section 301. Amount Unlimited; Issuable in Series..............................15
Section 302. Denominations.....................................................18
Section 303. Execution, Authentication, Delivery and Dating....................18
Section 304. Temporary Securities; Exchange of Temporary Securities............19
Section 305. Registration, Registration of Transfer and Exchange...............21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons......25
Section 307. Payment of Interest; Interest Rights Preserved....................26
Section 308. Persons Deemed Owners.............................................27
Section 309. Cancellation......................................................27
Section 310. Computation of Interest...........................................28
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ARTICLE Four Satisfaction and Discharge........................................28
Section 401. Satisfaction and Discharge of Indenture...........................28
Section 402. Application of Trust Money........................................29
ARTICLE Five Remedies..........................................................30
Section 501. Events of Default.................................................30
Section 502. Acceleration of Maturity, Rescission and Annulment................31
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................................32
Section 504. Trustee May File Proofs of Claim..................................33
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.............................................34
Section 506. Application of Money or Property Collected........................34
Section 507. Limitation on Suits...............................................35
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................................36
Section 509. Restoration of Rights and Remedies................................36
Section 510. Rights and Remedies Cumulative....................................36
Section 511. Delay or Omission Not Waiver......................................36
Section 512. Control by Holders of Securities..................................37
Section 513. Waiver of Past Defaults...........................................37
Section 514. Undertaking for Costs.............................................37
Section 515. Waiver of Stay, Extension or Usury Laws...........................38
ARTICLE Six The Trustee.......................................................38
Section 601. Certain Duties and Responsibilities...............................38
Section 602. Notice of Defaults................................................39
Section 603. Certain Rights of Trustee.........................................40
Section 604. Not Responsible for Recitals or Issuance of Securities............41
Section 605. May Hold Securities...............................................41
Section 606. Money Held in Trust...............................................41
Section 607. Compensation and Reimbursement....................................41
Section 608. Disqualification; Conflicting Interests...........................42
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Section 609. Corporate Trustee Required; Eligibility...........................48
Section 610. Resignation and Removal; Appointment of Successor................48
Section 611. Acceptance of Appointment by Successor............................50
Section 612. Merger, Conversion, Consolidation or Succession to Business.......51
Section 613. Preferential Collection of Claims Against Company.................51
Section 614. Appointment of Authenticating Agent...............................55
ARTICLE Seven Holders' Lists and Reports by Trustee and Company.................57
Section 701. Company to Furnish Trustee Names and Addresses of Holders........57
Section 702. Preservation of Information; Communications to Holders............57
Section 703. Reports by Trustee................................................58
Section 704. Reports by Company................................................60
ARTICLE Eight Consolidation, Merger, Conveyance or Transfer.....................61
Section 801. Company May Consolidate, etc., Only on Certain Terms..............61
Section 802. Successor Substituted.............................................62
ARTICLE Nine Supplemental Indentures...........................................62
Section 901. Supplemental Indentures Without Consent of Holders................62
Section 902. Supplemental Indentures with Consent of Holders...................63
Section 903. Execution of Supplemental Indentures..............................64
Section 904. Effect of Supplemental Indentures.................................65
Section 905. Conformity with Trust Indenture Act...............................65
Section 906. Reference in Securities to Supplemental Indentures................65
ARTICLE Ten Covenants.........................................................65
Section 1001. Payment of Principal, Premium and Interest........................65
Section 1002. Maintenance of Office or Agency...................................65
Section 1003. Money for Securities Payments to Be Held in Trust.................67
Section 1004. Officers' Certificate.............................................68
Section 1005. Additional Amounts................................................68
Section 1006. Existence.........................................................69
Section 1007. Limitation on Disposition of Voting Stock of World FSB
and World (Texas).................................................69
Section 1008. Limitation on Creation of Certain Liens...........................70
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Section 1009. Waiver of Certain Covenants.......................................71
ARTICLE Eleven Redemption of Securities..........................................71
Section 1101. Applicability of Article..........................................71
Section 1102. Election to Redeem; Notice to Trustee.............................71
Section 1103. Selection by Trustee of Securities to Be Redeemed.................72
Section 1104. Notice of Redemption..............................................72
Section 1105. Deposit of Redemption Price.......................................73
Section 1106. Securities Payable on Redemption Date.............................73
Section 1107. Securities Redeemed in Part.......................................74
ARTICLE Twelve Sinking Funds.....................................................74
Section 1201. Applicability of Article..........................................74
Section 1202. Satisfaction of Sinking Fund Payments with Securities.............75
Section 1203. Redemption of Securities for Sinking Fund.........................75
ARTICLE Thirteen Meetings of Holders of Securities.................................75
Section 1301. Purposes for Which Meetings May Be Called.........................75
Section 1302. Call, Notice and Place of Meetings................................75
Section 1303. Persons Entitled to Vote at Meetings..............................76
Section 1304. Quorum; Action....................................................76
Section 1305. Determination of Voting Rights; Conduct and Adjournment
of Meetings.......................................................77
Section 1306. Counting Votes and Recording Action of Meetings...................78
ARTICLE Fourteen Defeasance and Covenant Defeasance................................78
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance and Covenant Defeasance................................78
Section 1402. Defeasance and Discharge..........................................79
Section 1403. Covenant Defeasance...............................................79
Section 1404. Conditions to Defeasance and Covenant Defeasance..................79
Section 1405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions..........................81
Section 1406. Reinstatement.....................................................81
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ARTICLE Fifteen [Reserved]........................................................82
ARTICLE Sixteen Repayment at the Option of Securityholders........................82
Section 1601. Applicability of Article..........................................82
Section 1602. Repayment of Securities...........................................82
Section 1603. Exercise of Option; Notice........................................82
Section 1604. Securities Payable on the Repayment Date..........................83
ARTICLE Seventeen Immunity of Incorporators, Stockholders, Officers and
Directors.........................................................84
Section 1701. Exemption from Individual Liability...............................84
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture
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INDENTURE, dated as of August 8, 2001, between Golden West
Financial Corporation, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 1901 Harrison Street, Oakland, California 94612, and Bankers Trust
Company, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
senior debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, 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 of America at the date of such
computation; and
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(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.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"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 authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"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 the place in connection with which the
term is used or in the financial community of 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 including, without limitation, unless the
context otherwise indicates, a Security in global bearer form.
"Board of Directors" means the board of directors of the Company,
the executive committee or any other committee of such board duly authorized to
act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the 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 each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"Clearstream" means Clearstream Banking, societe anonyme.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the
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execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, Vice Chairman, Chief Executive Officer, President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary, or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated Assets" means all assets owned directly by the
Company or indirectly by the Company through any Subsidiary and reflected on the
Company's consolidated balance sheet prepared in accordance with generally
accepted accounting principles.
"Controlled Subsidiary" means a Subsidiary if at least 80% of the
issued and outstanding shares of its Voting Stock is owned by the Company or by
one or more Controlled Subsidiaries of the Company or by the Company and one or
more Controlled Subsidiaries of the Company, provided, however, that if any such
Voting Stock is owned by any Controlled Subsidiaries, the Company must own,
directly or indirectly through such Controlled Subsidiaries, in the aggregate at
least 80% of the issued and outstanding Voting Stock.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York, at which at any particular time its corporate
trust business shall be administered, which office at the date of original
execution of this Indenture is located at Four Albany Street, New York, New York
10006, Attention: Corporate Trust and Agency Services or at any other time at
such other address as the Trustee may designate from time to time by notice to
the Holders.
"corporation" means, except as used in Section 801(1), a
corporation, association, company, joint-stock company or business trust.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Default" means any Event of Default or any event that, after
notice or lapse of time or both, would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"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.
"Equivalent Principal Terms" has the meaning specified in Section
1102.
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"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Global Exchange Date" has the meaning specified in Section 304.
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person in whose name the 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, means 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.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"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, call for redemption, exercise of
option for repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, Chief Executive Officer, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be counsel for the
Company. Each such Opinion of Counsel shall contain the statements set forth in
Section 102.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust (except pursuant to
Article Fourteen) or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons thereto appertaining; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any one or more series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of Securities
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency or a composite currency shall be the
U.S. dollar equivalent, determined on the date of original issuance of such
Security by the Company in good faith, of the principal amount of such Security
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent, determined on the date of original issuance of such Security, of the
amount determined as provided in (i) above), of such Security, and (iii)
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 relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which a Responsible Officer in the
Corporate Trust Office of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not 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 authorized by the Company to pay
the principal of and any premium, interest or additional amounts on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization, limited liability company or other
entity, or government or any agency or political subdivision thereof.
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"Place of Payment", when used with respect to the Securities of
any series, means the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on the Securities of
that series are payable as specified as contemplated by Section 301.
"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, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, 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 established pursuant to
Section 201 which is registered in the Security Register, including, without
limitation, unless the context otherwise indicates, a Security in global form.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Repayment Date", when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment by or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
shall mean any officer within the Corporate Trust Office including any managing
director, director, vice president, assistant vice president, associate or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture, and also means, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" has the meaning specified in Section 305.
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"Security Registrar" means the Person appointed by the Company to
register Registered Securities and transfers of Registered Securities as
provided in Section 305. Initially, the Trustee is the Security Registrar for
the Securities.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of any series means a date fixed by the Company
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.
"Subsidiary" means a corporation or other entity a majority of
the outstanding Voting Stock of which is owned, directly or indirectly, by the
Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia) and its possessions.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"United States Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States and an estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case 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 U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government
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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
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"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, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) in
the equity interests of such Person, including, without limitation, capital
stock, partnership interests and limited liability company interests, in each
case having voting power for the election of, or to appoint or approve the
appointment of, the directors, trustees or other persons holding similar
positions or other governing body of such Person, whether at all times or only
so long as no senior class of stock or other equity interests has such voting
power because of default in dividends or other default.
"World FSB" means World Savings Bank, FSB, a federally chartered
savings bank, and any Person that shall, after the date of this Indenture,
succeed (whether by merger, consolidation, sale of assets or otherwise and
whether in one or more transactions or in successive transactions) to all or a
substantial part of the business or assets of World Savings Bank, FSB, it being
understood that, in the case of any such successor, all references in this
Indenture to World FSB refer to both World Savings Bank, FSB and/or such
successor, as the context shall require.
"World (Texas)" means World Savings Bank, FSB (Texas), a
federally chartered savings bank, and any Person that shall, after the date of
this Indenture, succeed (whether by merger, consolidation, sale of assets or
otherwise and whether in one or more transactions or in successive transactions)
to all or a substantial part of the business or assets of World Savings Bank,
FSB (Texas), it being understood that, in the case of any such successor, all
references in this Indenture to World (Texas) refer to both World Savings Bank,
FSB (Texas) and/or such successor, as the context shall require.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action or
refrain from taking any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent or covenants, 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 or covenants, 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 704(4)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition 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.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor and terms signed by such Holders in person or by
agent duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other
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action provided by this Indenture to be given or taken by Holders of such series
may, 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
Thirteen, 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 and 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 (subject to Section 601) conclusive in favor of the
Trustee and 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 1306.
(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 his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(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 which the Trustee deems
sufficient.
(e) 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
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or in lieu thereof in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) The Company may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to vote
or consent to any action by vote or consent authorized or permitted by Sections
512, 513 or 902. Such record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 701
prior to such solicitation.
Section 105. Notices, Etc., to Trustee and Company.
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 to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Agency Services, 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 (or by overnight delivery), to the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument, to the attention of its Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event,
at the address of such Holder as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published on a Business Day in an Authorized Newspaper in
The City of New York and in such other city or cities as may be
specified in such Securities, at least twice, each such publication to
be not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to Holders of
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Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
In case by reason of the suspension of 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 Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) of the Trust Indenture Act, the duties
imposed upon the Trustee by the Trust Indenture Act will control. The parties
hereto further agree that in the case of any duty of the Trustee detailed herein
that relates to a specific subject matter covered by the Trust Indenture Act and
is set forth herein in a different manner than in the Trust Indenture Act (which
manner does not limit, qualify or conflict with the duties imposed by the Trust
Indenture Act but is susceptible to the interpretation that it imposes an
additional duty on the Trustee), the Trustee shall only be required to comply
with the requirements of the Trust Indenture Act with respect to that particular
subject matter and shall have no additional contractual duties.
Section 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
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Section 111. Separability Clause.
In case any provision in this Indenture or the Securities or
coupons shall be invalid, illegal or unenforceable, then, to the extent
permitted by law, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities and coupons shall be governed
by and construed in accordance with the laws of the State of California except
that the rights, duties, privileges and immunities of the Trustee shall be
governed by the laws of the State of New York.
Section 114. Legal Holidays.
Except as specified pursuant to Section 301, in any case where
any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons 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 interest or principal and any premium 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 or Repayment Date, or at the Stated Maturity,
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date or
Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form
(including temporary or permanent global form) as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. Any such legends or endorsements
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placed on such Securities by the Company after the execution of the Securities
or coupons shall be delivered in writing to the Trustee by the Company. If
temporary Securities of any series are issued in global form as permitted by
Section 304, the form thereof shall be established as provided in the second
preceding sentence. If the forms of Securities or coupons of any series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities other than Bearer Securities in temporary or permanent global form
shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By
-------------------------------------
Authorized Signatory
Section 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
specified by Section 301, then, notwithstanding clause (10) of Section 301 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
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon written
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 global form
in the manner and upon written
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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 or 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.
The provisions of the last sentence of Section 303 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 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.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Holder thereof.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, unless otherwise specified as contemplated
by Section 301, the Company, the Trustee and any agent of the Company and the
Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global Security
which is produced to the Trustee by such Holder.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution 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:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1603 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
provided that, unless otherwise expressly
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provided pursuant to this Section 301 with respect to the Securities of
the series, the Company may "reopen" the series and issue additional
Securities of the series from time to time;
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of
the series are to be issuable with or without coupons or both, 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 and the circumstances under which such
Securities may be issued, delivered or exchanged, if other than in the
manner provided in this Article Three, and the name of any Common
Depositary, or depositary, as the case may be, for such global Security;
(4) (i) the manner in which or the Person to whom any interest on
any Registered Security of the series shall be payable, if other than
the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest, (ii) 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 (iii) the extent to
which, or the manner in which, any interest payable on a global Security
will be paid in any case if other than in the manner provided in this
Article Three or Section 1002;
(5) the date or dates on which the principal of the Securities of
the series is payable;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, or the formula pursuant to which such rate or
rates shall be determined, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Sections 1002 and 114, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange, notices and demands to or
upon the Company in respect of the Securities of the series and this
Indenture may be served and where notice to Holders pursuant to Section
106 will be published;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company
and/or repaid in whole or in part, at the option of the Holders;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms
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and conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than the denominations provided in
Section 302, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the
denominations provided in Section 302;
(11) the currency or currencies, including composite currencies,
in which payment of the principal of and any premium and interest on the
Securities of the series shall be payable if other than Dollars and the
agency or organization responsible for overseeing such composite
currency and other terms and conditions with respect thereto;
(12) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) if the amount of payments of principal of and any premium or
interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(14) if other than the principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(15) if either or both of Section 1402 or Section 1403 shall not
apply to the Securities of the series;
(16) the Person who shall be the Security Registrar, if other
than the Trustee, the Person who shall be the initial Paying Agent and
the Person who shall be the initial Common Depositary or the depositary,
as the case may be, and any provisions for the appointment of a
successor Common Depositary or depositary; and
(17) any other terms of the series.
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 the Board Resolution referred to above
and (subject to Section 303) set forth in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the
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Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the series.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, any Registered Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, Vice Chairman, Chief Executive Officer, President or a
Vice President, under its corporate seal (or a facsimile thereof) reproduced
thereon attested by its Secretary or an Assistant Secretary. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Treasurer or any Assistant Treasurer
of the Company.
Securities and 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.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, 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, however, 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, a Bearer Security other than a temporary global Bearer Security may be
delivered in connection with its original issuance only if the Company or its
agent shall have received the certification required pursuant to Section 304
relating to the exchange of the temporary global Security for definitive Bearer
Securities, unless the certification shall have been provided earlier pursuant
to Section 304 relating to the payment of interest, and only if the Company has
no reason to know that the certification is false. 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 the forms or terms of the Securities of the series and any
related coupons have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating:
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(a) if the forms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section 201, that
such forms have been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to general
equity principles.
If such forms or terms have been so established, 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 provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued.
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 a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been duly 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 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security 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; Exchange of Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary
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Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
and terms 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
evidenced by their execution of such Securities. In the case of any series
issuable as Bearer Securities, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto) the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like aggregate
principal amount of definitive Securities of the same series and of like tenor
and terms of authorized denominations; provided, however, 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 pertaining to the original issuance of Bearer Securities set
forth in Section 303.
Unless otherwise specified as contemplated by Section 301, if
temporary Securities of any series are issued in global form, any such temporary
global Security shall be delivered to the office of a depositary or common
depositary chosen by Euroclear and Clearstream (the "Common Depositary"), 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).
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 "Global Exchange Date"), the Company shall deliver to the
Trustee Securities, in aggregate principal amount equal to the principal amount
of, and with the same tenor and terms as, such temporary global Security,
executed by the Company. On or after the Global Exchange Date such temporary
global Security shall be surrendered by the Common Depositary to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for such Securities, without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of Securities of the same series
of authorized denominations and of like tenor and terms as the portion of such
temporary global Security to be exchanged. The Securities to be delivered in
exchange for any such temporary global Security shall be definitive Bearer
Securities, definitive Registered Securities or all or a portion of a permanent
global Security 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, however, that, in the case of the
exchange of the temporary
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global Security for definitive Bearer Securities (including a permanent global
Bearer Security), upon such presentation by the Common Depositary, such
temporary global Security shall be accompanied by a certificate dated not
earlier than the Global Exchange 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 not earlier than the Global Exchange 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.3 to this
Indenture, unless the certificate(s) shall have been provided earlier pursuant
to this Section 304 relating to the payment of interest, and provided, further,
that definitive Bearer Securities (including a permanent global Bearer Security)
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303 pertaining to the original
issuance of Bearer Securities.
The interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities or an
interest in a permanent global Security of the same series and of like tenor and
terms on or after the Global Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and in the case of the exchange of the temporary global Security for
definitive Bearer Securities (including a permanent global Bearer Security),
unless the certificate(s) shall have been provided earlier pursuant to this
Section 304 relating to the payment of interest, the account holder shall
deliver to Euroclear or Clearstream, as the case may be, a certificate in the
form set forth in Exhibit A.1 and, if applicable, Exhibit A.2 to this Indenture,
dated no earlier than 15 days prior to the Global 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.
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 and terms authenticated and delivered hereunder, except that interest
payable on a temporary global Security shall be payable to Euroclear and
Clearstream on any Interest Payment Date only if there has been delivered by
Euroclear and Clearstream to the Trustee a certificate or certificates in the
form set forth in Exhibit A.3 to this Indenture dated no earlier than the first
Interest Payment Date, and only if the Company has no reason to know that the
certification is false for credit without further interest 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 in the form set forth in Exhibit A.1 and, if applicable,
Exhibit A.2 to this Indenture dated no earlier than 15 days prior to the first
Interest Payment Date.
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Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to 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 the registration
of transfers of Registered Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 1002 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall authenticate and deliver, 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 and terms.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series in any
authorized denominations and of a like aggregate principal amount and tenor and
terms, upon surrender of the Securities to be exchanged at any such office or
agency. 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. Bearer Securities
may not be issued in exchange for Registered Securities.
At the option of the Holder, Registered Securities of any series
may be issued in exchange for Bearer Securities of the same series in any
authorized denominations and of a like aggregate principal amount and tenor and
terms, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if 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, however, 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 exchange for a Registered
Security of the same series and like tenor and terms 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
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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.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph or the next succeeding paragraph. In the case
of permanent global Bearer Securities and in the case of permanent global
Registered Securities if the beneficial owners of interests in a permanent
global Registered Security are entitled to exchange such interests for
Securities of such series and of like tenor and terms and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of 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 depositary
(or its custodian) 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 and terms as the portion of such
permanent global Security to be exchanged which in the case of a permanent
global Bearer Security, 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, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that no definitive Bearer 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 (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, 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.
Notwithstanding the provisions set forth in the immediately
preceding paragraph, unless otherwise provided pursuant to Section 301 with
respect to the Securities of any series, the
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global Securities of any series shall be exchangeable for definitive
certificated Securities of such series if (i) the depositary for such global
Securities notifies the Company that it is unwilling or unable to continue as
depositary for such global Securities or at any time such depositary ceases to
be a clearing agency registered as such under the Securities Exchange Act of
1934, as amended (or any successor thereto), if so required by applicable law or
regulation, and Company shall not have appointed a successor depositary for such
Securities within 90 days of such notification or of the Company becoming aware
of the depositary's ceasing to be so registered, as the case may be, (ii) the
Company, in its sole discretion, determines that the global Securities of such
series shall be exchangeable for definitive certificated Securities of such
series and executes and delivers to the Trustee a Company Order to the effect
that such global Securities shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities of such
series. If the Holders of, or beneficial owners of interests in, a global
Security are entitled to exchange such interests for definitive Securities as a
result of an event described in the preceding sentence, such exchanges shall be
effected in accordance with the provisions set forth in the immediately
preceding paragraph unless otherwise provided pursuant to Section 301. Unless
otherwise provided pursuant to Section 301 with respect to the Securities of any
series, any global Security of a series that is exchangeable for definitive
certificated Securities of such series pursuant to this paragraph will be
exchangeable for definitive certificated Securities of such series registered in
such name or names as the depositary for such global Security shall instruct the
Trustee in writing.
All Securities issued upon any registration of transfer or in
exchange for Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1604 not involving any
transfer.
The Company shall not be required to (i) issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and ending at the close of business on the day for such
mailing and (B) if Securities of the series are issuable as either Bearer
Securities or Registered Securities, the earlier of the day of the first
publication of the relevant notice of redemption or the mailing of the relevant
notice of redemption and ending at the close of business on such earlier day, or
(ii) register the transfer of or exchange any Registered Security so selected
for redemption, in whole or in part, except the unredeemed portion of any
Registered
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Security being redeemed in part, or (iii) exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security or coupon, as the case may be, of the same series and like
tenor and terms, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and
Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, 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 terms and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice of the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request 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 terms 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.
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, pay such Security or coupon;
provided, however, that principal of and any premium and interest 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.
Upon the issuance of any new Security under this Section, the
Company may require 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 reasonable fees and expenses of the Trustee) connected
therewith.
Every new Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and any such new Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and of like tenor and terms and
their coupons, if any, duly issued hereunder.
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The provisions of this Section are (to the extent lawful)
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.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, at the option of the
Company, payment of interest on any Registered Security may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account designated by
such Person pursuant to an arrangement that is satisfactory to the Trustee and
the Company. In the event that payments shall be made by wire transfer, the
Company shall arrange by 10:00 a.m. New York time on the Interest Payment Date
for the wire transfer of money in immediately available funds to the Trustee or
Paying Agent. The Trustee shall not be responsible or held liable for any loss
resulting from a failure of the federal funds wire system or any other
occurrence beyond its control in connection with wire transfers made pursuant to
this Section.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(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 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, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. At the same time the
Company 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. Upon receipt of written notice of such Special Record Date from
the Company the Trustee, 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 mailed, first-class postage
prepaid, to each Holder of Registered Securities of such series at the
address of such Holder as it appears in the
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Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, 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).
(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 written 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.
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 or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a 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 any premium and (subject to Sections 305 and 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
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 neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security issued in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment, 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. All Securities and coupons so delivered shall be
promptly cancelled by the Trustee. The Company may at any time
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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 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. 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. All cancelled Securities and
coupons held by the Trustee shall be destroyed and the Trustee shall furnish to
the Company a certificate with respect to such destruction.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months. Except as
otherwise provided by Section 301 for the Securities of any series or in the
certificates evidencing the Securities of such series, if any principal of or
premium, if any, or interest, if any, on the Securities of such series is not
paid when due then, to the extent permitted by law, interest will accrue and be
payable by the Company on such overdue principal, premium, if any, and interest,
if any, at the rate or rates prescribed therefor in such Securities or with
respect to such Securities pursuant to Section 301, as the case may be, or if no
interest rate is prescribed therefor as aforesaid, at the rate or rates of
interest borne by such Securities.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights expressly provided for in the last
paragraph of this Section 401), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) 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 (iv) Securities and coupons for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
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(B) all such Securities and, in the case of (i) or (ii) below,
any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount in cash sufficient to pay and discharge the entire indebtedness on
such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and the
penultimate paragraph of Section 1405, the obligations of the Company to the
Holders of any Securities of any series which are repayable by the Company at
the option of such Holders in accordance with Article Sixteen, the provisions
of Sections 304, 305, 306, 307, 1002, 1003 and 1005 and the payment obligations
to any Authenticating Agent under Section 614 shall survive and, if money shall
have been deposited with the Trustee pursuant to Clause (1)(B) of this Section,
the provisions of Section 402, the rights of Holders of Outstanding securities
to receive, from the trust fund described in this Section and as more fully
provided in Section 402, payments in respect of the principal of and any
premium and interest on such Securities when such payments are due, the other
provisions of this Article Four and, if applicable, the provisions of Article
Eleven, shall also survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
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 any
premium and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
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ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means unless otherwise specified pursuant to Section
301, any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series or any related coupon when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of any principal of or any premium on
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or in the Securities of that
series (other than a covenant or warranty a default in the performance
of which or a breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of one or more series of Securities other than that
series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of not less than 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) a default under any mortgage, indenture or other instrument
under which there may be issued, or by which there may be secured or
evidenced, any indebtedness of the Company, World FSB or World (Texas)
for money borrowed (including this Indenture with respect to any
Outstanding Securities of any other series), whether such indebtedness
now exists or shall hereafter be created, shall happen and shall result
in such indebtedness in an aggregate principal amount in excess of
$10,000,000 becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled and such indebtedness
shall not be discharged within a period of 30 days after there shall
have been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of not less
than 25% in principal amount of the Outstanding Securities of that
series, a written notice specifying such default and requiring the
Company to cause such acceleration to be rescinded or annulled or such
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indebtedness to be discharged and stating that such notice is a "Notice
of Default" hereunder; or
(6) the entry of a decree or order for relief in respect of the
Company, World FSB or World (Texas) by a court having jurisdiction in
the premises in an involuntary case under the federal bankruptcy laws,
as now or hereafter constituted, or any other applicable federal or
state bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian or sequestrator (or
other similar official) of the Company, World FSB or World (Texas) or of
any substantial part of the property of the Company, World FSB or World
(Texas), or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the Company, World FSB or World (Texas)
of a voluntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or similar law, or the consent by the Company,
World FSB or World (Texas) to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian or sequestrator (or
other similar official) of the Company, World FSB or World (Texas) or of
any substantial part of the property of the Company, World FSB or World
(Texas), or the making by any of such entities of any assignment for the
benefit of creditors.
Section 502. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default shall occur and be continuing with respect
to Securities of any series, then in every such case the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of
and all accrued but unpaid interest on all of 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 Holders), and upon any such declaration such principal
amount (or specified amount) and interest shall become immediately due and
payable. Upon payment of such amount, together with, to the extent permitted by
law, interest on any overdue principal, premium, if any, and interest, if any,
on the Securities of such series, all obligations of the Company in respect of
payment of the principal of and interest on the Securities of that series shall
terminate.
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 in this
Article provided, 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 to pay
(A) all overdue interest on all Securities of that series;
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(B) the principal of and any premium on any Securities of that
series which have become due otherwise than by such declaration of
acceleration, and any interest thereon at the rate or rates prescribed
therefor in such Securities or with respect to such Securities pursuant
to Section 301, as the case may be, or, if no such interest rate is
prescribed therefor, at the interest rate or rates borne by such
Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities or with respect to such Securities pursuant to
Section 301, as the case may be, or, if no such interest rate is
prescribed therefor, at the interest rate or rates borne by such
Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security or any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days; or
(2) default is made in the payment of any principal of, or any
premium on, any Security at the Maturity thereof;
(3) default is made in the deposit of any sinking fund payment,
when and as due by the terms of a Security of such series; or
(4) default is made in the performance, or there is a breach, of
any covenant or warranty of the Company in this Indenture or in any
Security of any series (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with or that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities
other than such series), and such default or breach continues 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 such series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
"Notice of Default" hereunder;
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal and any premium, sinking fund
installment and interest, and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and premium, sinking
fund installment and on any overdue interest, computed from the date of default
in the payment of such interest, at the rate or rates prescribed therefor in
such Securities or with respect to such Securities pursuant to Section 301, as
the case may be, or, if no such interest rate is prescribed therefor, at the
interest rate or rates borne by 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.
If the Company fails to pay such amounts, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and coupons 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 and coupons, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may 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 most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings or any voluntary or involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Securities of any series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
and any premium and interest owing and unpaid in respect of the
Securities of such series and any related coupons 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 of Securities and coupons allowed
in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, custodian, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons 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 of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon 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 or Property Collected.
Any money or property 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 or property on
account of principal or any premium or interest, 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 to the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and coupons
in respect of which or for the benefit of which such money or property
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons
for principal and any premium and interest, respectively; and
Third: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
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In any case where Securities are Outstanding which are
denominated in more than one currency, or in a composite currency and at least
one other currency, and the Trustee is directed to make ratable payments under
this Section to Holders of such Securities, the Trustee shall (to the fullest
extent permitted by law) calculate the amount of such payments as follows: (i)
as of the day the Trustee collects an amount under this Article, the Trustee
shall, as to each Holder of a Security to whom an amount is due and payable
under this Section which is denominated in a foreign currency or a composite
currency, determine that amount of Dollars that would be obtained for the amount
owing such Holder, using the rate of exchange at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York Dollars
with such amount owing; (ii) calculate the sum of all Dollar amounts determined
under (i) and add thereto any amounts due and payable in Dollars; and (iii)
using the individual amounts determined in (i) or any individual amounts due and
payable in Dollars, as the case may be, as a numerator and the sum calculated in
(ii) as a denominator, calculate as to each Holder of a Security to whom an
amount is owed under this Section the fraction of the amount collected under
this Article payable to such Holder. Any expenses incurred by the Trustee in
actually converting amounts owing Holders of Securities denominated in a
currency or composite currency other than that in which any amount is collected
under this Article shall be likewise (in accordance with this paragraph) borne
ratably by all Holders of Securities to whom amounts are payable under this
Section.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of, or any premium or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of
New York preceding that on which final judgment is given. To the extent
permitted by applicable law, the Company shall not be liable for any shortfall
nor shall it benefit from any windfall in payments to Holders of Securities
under this Section caused by a change in exchange rates between the time the
amount of a judgment against it is calculated as above and the time the Trustee
converts the Judgment Currency into the Required Currency to make payments under
this Section to Holders of Securities, but payment of such judgment shall
discharge all amounts owed by the Company on the claim or claims underlying such
judgment.
Section 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
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:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) 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;
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(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Sections 305 and 307) any interest on such Security or payment of
such coupon on the Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption or repayment, on the Redemption Date or
the Repayment Date, as the case may be) 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, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Securities and coupons shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, 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, to the extent permitted by applicable law,
prevent the concurrent assertion or employment of any other right or remedy.
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Section 511. Delay or Omission Not Waiver.
To the extent permitted by applicable law, 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 of Securities or coupons may, to the extent permitted by
applicable law, 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.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) subject to the provisions of Section 601, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of
the Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Securities of such series not joining in
any such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in 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 the Securities of such series and its consequences,
except a default
(1) in the payment of the principal of or any premium or interest
on any Security or coupon of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder of any Security or coupon for
the enforcement of the payment of the principal of or any premium or interest on
any Security or the payment of any coupon on or after the Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
Section 515. Waiver of Stay, Extension or Usury 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, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture or the Securities or that would
prohibit or forgive the Company from paying all or any portion of the principal
of or premium, if any, or interest, if any, on any Securities as contemplated
herein and therein; 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.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a Default,
(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; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a
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duty to examine the same to determine whether or not they conform to the
requirements of this Indenture but need not confirm the accuracy of the
information contained therein.
(b) In case a Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
conclusively determined by a court of competent jurisdiction that the
Trustee was negligent in ascertaining the pertinent facts;
(3) 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 relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee 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.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series the Trustee shall transmit to all
Holders of Securities of such series in the manner and to the extent provided in
Section 703(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of or any premium or
interest on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series. For the
purpose of this Section, the
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term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
The Trustee shall not be charged with knowledge of any Event of
Default unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge or (2) the Trustee shall have received written notice thereof from the
Company or a Holder.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall fully 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, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee
may consult with counsel and the advice of such counsel, as confirmed in
writing, or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture 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 it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness 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;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and
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the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent, attorney, custodian or nominee appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture; and
(i) in no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon; the Trustee shall have no
liability in respect of losses incurred as a result of the liquidation of any
such investment prior to its stated maturity or the failure of the party
directing such investment to provide timely written investment directions; the
Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of such written investment directions.
In the event that the Trustee is also acting as Paying Agent, Security Registrar
or transfer agent hereunder, the rights and protections afforded to the Trustee
pursuant to this Article Six shall also be afforded to such Paying Agent,
Security Registrar or transfer agent.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be (i)
accountable for the use or application by the Company of Securities or the
proceeds thereof, (ii) accountable for any money paid to the Company, or upon
the Company's direction, if made under and in accordance with any provision of
this Indenture or (iii) responsible for the use or application of any money
received by any Paying Agent other than the Trustee.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar 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 Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
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(1) to pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as may be agreed upon by the
Company and the Trustee in writing (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee in its individual capacity and as
Trustee, and each of its officers, directors, attorneys-in-fact,
employees, and agents for, and to hold it harmless against, any loss,
claim, liability, obligation, damage, injury, penalty, action, suit,
judgment, cost or expense (including attorneys' fees and expenses)
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The foregoing provisions shall survive the termination of this
Indenture or any resignation or removal of the Trustee.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or
coupons. Such lien shall survive the satisfaction and discharge of this
Indenture and, to the extent permitted by law, any rejection or termination of
this Indenture under any federal or state bankruptcy law.
To the fullest extent permitted by law, when the Trustee incurs
reasonable expenses or renders services in connection with an Event of Default
specified in Section 501(6) or (7), the Holders of the Securities of any series,
by their acceptance of such Securities, agree that such reasonable expenses and
the compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy law.
Section 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series then,
within 90 days after ascertaining that it has such conflicting interest, and if
the Event of Default, but exclusive of any period of grace or requirement of
notice, to which such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day period, the Trustee
shall either eliminate such conflicting interest or, except as otherwise
provided below in this Section, resign with respect to the Securities of that
series in the manner and with the effect hereinafter specified
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in this Article and the Company shall take prompt steps to have a successor
appointed in the manner provided herein.
(b) (1) If the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit, in the manner and to the extent provided in Section 703(c), to all
Holders of Securities of that series notice of such failure.
(2) Subject to the provisions of Section 514, unless the
Trustee's duty to resign is stayed as provided in Subsection (f) of this
Section, any Holder who has been a bona fide Holder of Securities of any series
referred to in Subsection (a) of this Section 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 such Trustee, and the appointment of a
successor, if such Trustee fails, after written request thereof by such Holder
to comply with the provisions of Subsection (a) of this Section.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any series if
an Event of Default, but exclusive of any period of grace or any requirement of
notice, has occurred with respect to the Securities of that series and
(1) the Trustee is trustee under this Indenture with respect to
the Outstanding Securities of any series other than that series or is
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a collateral
trust indenture under which the only collateral consists of Securities
issued under this Indenture, provided that there shall be excluded from
the operation of this paragraph, (A) this Indenture with respect to the
Securities of any series other than that series and (B) any other
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are
outstanding and
(i) this Indenture and such other indenture or indentures
(and all series of securities issuable thereunder) are wholly
unsecured and rank equally and such other indenture or indentures
are hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to Securities of that series and one or more other series
or the provisions of such other indenture or indentures which are
so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after opportunity
for hearing thereon, that trusteeship under this Indenture with
respect to the Securities of that series and such other series
or such other indenture or indentures is not so likely to
involve a
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material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify
the Trustee from acting as such under this Indenture with respect
to the Securities of that series and such other series or under
such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive officer,
or both, of the Company but may not be at the same time an executive
officer of both the Trustee and the Company; (ii) if and so long as the
number of directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and (iii) the
Trustee may be designated by the Company or by any underwriter for the
Company to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph (1) of this
Subsection, to act as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is
also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10%
or more of the voting securities of, or controls directly or indirectly
or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of
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any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date any Event of Default, but
exclusive of any period of grace or requirement of notice, has occurred
upon the Securities of any series or any anniversary of such default
while such default upon such Securities remains outstanding, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this Subsection. As to any
such securities of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of not more than two years from the date of such
acquisition, to the extent that such securities included in such estate
do not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the dates of any such default upon the
Securities of any series and annually in each succeeding year that such
default upon such Securities continues, the Trustee shall make a check
of its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of or any premium or interest on any of the
Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of paragraphs
(6), (7) and (8) of this Subsection; or
(10) except under the circumstances described in paragraphs (1),
(3), (4), (5) or (6) of Section 613(b), the Trustee shall be or shall
become a creditor of the Company.
For purposes of paragraph (1) of this Subsection, the term
"series" means a series, class or group of securities issuable under an
indenture or this Indenture pursuant to whose terms holders of one such series
may vote to direct the trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another such series; provided, that
"series" shall not include any series of securities issuable under an indenture
(including any series of Securities issuable under this Indenture) if all such
series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to
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evidence an obligation to repay moneys lent to a person by one or more banks,
trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an obligation
shall be deemed to be "in default" when a default in payment of principal shall
have continued for 30 days or more and shall not have been cured; and (iii) the
Trustee shall not be deemed to be the owner or holder of (A) any security which
it holds as collateral security, as trustee or otherwise, for an obligation
which is not in default as defined in clause (ii) above, or (B) any security
which it holds as collateral security under this Indenture, irrespective of any
default hereunder, or (C) any security which it holds as agent for collection,
or as custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the
Company, means every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation in any
such undertaking, or has participated or has had a participation in the
direct or indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a commission
from an underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or
any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only
a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs
of a person.
(5) The term "Company" means any obligor upon the Securities of
any series or any related coupons.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated
or unincorporated, but shall not include the chairman of the board of
directors.
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(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means such
amount of the outstanding voting securities of such person as entitles
the holder or holders thereof to cast such specified percentage of the
aggregate votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the direction or
management of the affairs of such person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of units
if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed sufficient
to constitute such series different classes and provided, further, that,
in the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient
to constitute them securities of different classes, whether or not they
are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Securities of any series, or in the payment of
any sinking or purchase fund installment, the
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Trustee shall not be required to resign as provided by this Section if the
Trustee shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that (i) the Event of
Default, but exclusive of any period of grace or requirement of notice, may be
cured or waived during a reasonable period and under the procedures described in
such application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of such Securities. The filing of
such an application shall automatically stay the performance of the duty to
resign until the Commission orders otherwise.
(g) If Section 310(b) of the Trust Indenture Act is amended at
any time after the date of this Indenture to change the circumstances under
which a Trustee shall be deemed to have a conflicting interest with respect to
the Securities of any series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to incorporate such
changes, unless such changes would cause any Trustee then acting as Trustee
hereunder with respect to any Outstanding Securities to be deemed to have a
conflicting interest, in which case such changes shall be incorporated herein
only to the extent that such changes (i) would not cause the Trustee to be
deemed to have a conflicting interest or (ii) are required by law.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority; provided, however, that if Section 310(a) of the Trust
Indenture Act or the rules and regulations of the Commission under the Trust
Indenture Act at any time permit a corporation organized and doing business
under the laws of any other jurisdiction to serve as trustee of an indenture
qualified under the Trust Indenture Act, this Section 609 shall be automatically
amended to permit a corporation organized and doing business under the laws of
any such other jurisdiction to serve as Trustee hereunder, provided that such
corporation 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 to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor any
person directly or indirectly controlling, controlled by or under common control
with the Company may serve as Trustee. 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.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
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(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. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with
respect to the Securities of any series after written request therefor
by the Company or by any Holder of a Security of such series who has
been a bona fide Holder of a Security of such series for at least six
months, unless the Trustee's duty to resign has been stayed as provided
in Section 608(f), or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting with respect to
any series of Securities or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect
of the Trustee in an involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable federal or
state bankruptcy, insolvency or similar law, or a decree or order by a
court having jurisdiction in the premises shall have been entered for
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or its property or
affairs, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, 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
(including those who have been Holders for less than six months), 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.
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(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series 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 in accordance with the applicable requirements of Section
611, 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 required by Section 611, 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 (including those who
have been Holders for less than six months), or the Trustee may, petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) 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 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 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all series of Securities, every such successor Trustee so
appointed 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 the 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 liens, if any, provided for in Section 607.
(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
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to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees as 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 paragraph (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 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a
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default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and coupons and the holders of other
indenture securities, as defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
voluntary or involuntary case had been commenced in respect of the
Company under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Company
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in Subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
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For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders of Securities and the holders of
other indenture securities in such manner that the Trustee, the Holders of
Securities and the holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders of
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, whether
such distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, the Holders of Securities and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders of Securities and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this Subsection if and only if
the following conditions exist:
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(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders of
Securities at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper, as defined in Subsection
(c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payments in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account;
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(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation; and
(5) the term "Company" means any obligor upon the Securities.
Section 614. Appointment of Authenticating Agent.
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
original issue or upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and if the Trustee is required to appoint
one or more Authenticating Agents with respect to any series of Securities, to
authenticate Securities of such series upon original issuance and to take such
other actions as are specified in Sections 303, 304, 305, 309, 906, 1107 and
1603, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, or in the case of any Authenticating Agent with respect to
Securities issuable as Bearer Securities, under the laws of any country in which
such Bearer Securities may be offered, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by Federal or State
authority or authority of such country. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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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 such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent; provided, however,
that the Trustee shall upon such merger, conversion or consolidation notify
Holders of Bearer Securities thereof as provided in Section 106.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the 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 may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall provide notice to the
Holders of the series as to which the Authenticating Agent will serve as
provided 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. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series
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authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than each April 15 and October 15 in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of Securities of each series for
which the Trustee acts as Trustee as of a date not more than 15 days
prior to the time such list is furnished, and
(b) 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;
excluding from any such list, if the Company so desires, names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities (i)
contained in the most recent list furnished to the Trustee as provided in
Section 701, (ii) received by the Trustee in its capacity as Paying Agent or
Security Registrar and (iii) filed with it within the two preceding years
pursuant to Section 703(c)(2). The Trustee may (i) destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished, (ii)
destroy any information received by it as Paying Agent or Security Registrar
hereunder upon delivering to itself as Trustee, not earlier than April 15 or
October 15, a list containing the names and addresses of the Holders of
Securities obtained from such information since the delivery of the next
previous list, if any, (iii) destroy any list delivered to itself as Trustee
which was compiled from information received by it as Paying Agent or Security
Registrar hereunder upon the receipt of a new list so delivered, and (iv)
destroy not earlier than two years after filing, any information filed with it
pursuant to Section 703(c)(2).
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case each such applicant must hold
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Securities of such series) or with all Holders of Securities with respect to
their rights under this Indenture or under the Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or of all
Securities, as the case may be, whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
of Securities of such series or of all Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders of Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) 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 agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 702(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after October 1 of each year commencing with
the year 2002, the Trustee shall transmit by mail to all Holders of Securities
of any series for which it acts as the Trustee, as provided in Subsection (c) of
this Section, a brief report dated as of such October 1
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with respect to any of the following events which may have occurred within the
previous twelve months (but if no such event has occurred within such period, no
report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of paragraphs Section 608(c);
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities of such series or any related
coupons, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more
than one-half of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 602;
provided, however, that if the Trust Indenture Act is amended subsequent to the
date hereof to eliminate the requirement of the Trustee's brief report, the
report required by this Section need not be transmitted to any Holders.
(b) The Trustee shall transmit to all Holders of Securities of
any series for which it acts as the Trustee, as provided in Subsection (c) of
this Section, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series for which it acts as the
Trustee, on property or funds held or collected by it as Trustee for such series
and which it
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has not previously reported pursuant to this Subsection to be transmitted within
90 days after the time of any such advances, except that the Trustee shall not
be required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate 10% or less of the principal amount of the
Securities of such series Outstanding at such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which any Securities of such series are listed, with the
Commission and with the Company. The Company will notify the Trustee in writing
when any series of Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(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
said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 703(c) with
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respect to reports pursuant to Section 703(a), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission;
and
(4) furnish to the Trustee, not less often than annually, 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. For purposes of this paragraph, such compliance shall be
determined without regarding to any period of grace or requirement of
notice provided under this Indenture.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any Person
or sell, assign, lease, convey or otherwise transfer its properties and assets
substantially as an entirety to any Person, unless
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment,
lease, conveyance or other transfer the properties and assets of the
Company substantially as an entirety shall be a corporation, partnership
or trust organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the principal
of and any premium and interest (including all additional amounts, if
any, payable pursuant to Section 1005) on all the Securities and the
performance and observance of every covenant of this Indenture and the
Securities and the coupons on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
(3) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment,
lease, conveyance or other transfer the properties and assets of the
Company substantially as an entirety shall waive any right to redeem the
Securities under circumstances which such Person would be entitled to
redeem but the Company would not have been so entitled to redeem if such
consolidation, merger, sale, assignment, lease, conveyance or other
transfer had not occurred; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, sale, assignment, lease, conveyance or other
transfer and such supplemental indenture comply with this Article
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and that all conditions precedent herein provided for relating to such
transactions have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale, assignment, lease, conveyance or
other transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, lease, conveyance or other 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 Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities and coupons.
ARTICLE NINE
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 a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto,
for any of the following purposes:
(1) 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; or
(2) 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
(3) to add any additional Events of Default (and if such Events
of Default are to be applicable to less than all series of Securities,
stating that such Events of Default or Defaults are expressly being
included solely to be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or 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
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(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination (a) 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 (b) shall not apply to any
Security Outstanding; or
(6) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee pursuant
to the requirements of Section 611(b); or
(8) to evidence any changes to Section 608, 609 or 703(a)
resulting from changes in the Trust Indenture Act or the rules and
regulations of the Commission thereunder expressly contemplated by such
Sections; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or 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
(10) to provide for the agreement of the Company with respect to
an acquired Controlled Subsidiary as contemplated by clause (ii) of the
second paragraph of Section 1007; or
(11) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interests of Holders of the Securities of any
series or any coupons in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof, or the rate of
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interest thereon or any premium payable thereon, or change any
obligation of the Company to pay additional amounts pursuant to Section
1005, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or change
the coin or currency in which any Security or any premium or any
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, or on or after the
Redemption Date or Repayment Date, as the case may be), 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 (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in Section 513 or 1009 of this Indenture, or reduce the requirements
of Section 1304 for quorum or voting, or
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 1002, or
(4) adversely affect the right to repayment, if any, of any
Securities at the option of the Holders thereof; or
(5) modify any of the provisions of this Section or Section 513
or 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
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.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and such supplemental indenture
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance
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with its terms, subject to customary exceptions. 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 coupons 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 TEN
Covenants
Section 1001. Payment of Principal, Premium 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 any premium and interest on the Securities of that series in accordance
with the terms of the Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If
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Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, in a Place of
Payment for that series, which is located outside the United States, an office
or agency where Securities of that series and related coupons may be presented
and surrendered for payment (including payment of any additional amounts payable
on Securities of that series pursuant to Section 1005); provided, however, that
if the Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, 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 London, 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. The Company will give prompt written notice to the
Trustee and the Holders of such series of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations, and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, 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, however, that, if the Securities of a series are denominated
and payable in Dollars, payment of principal of and any premium and interest on
any Bearer Security (including any additional amounts payable on Securities of
such series pursuant to Section 1005) 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,
interest or additional amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions on the full payment or receipt of such
principal, premium, interest or additional amounts, as the case may be, in
Dollars. Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, at the option of the Holder of any Bearer Security
or related coupon, payment may be made by check presented or mailed to an
address outside the United States or by transfer to an account maintained by the
payee with a bank located outside the United States.
The Company may also 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 such purposes and may from time to time
rescind such designations; provided, however, 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 and the Holders of such series of any such designation or
rescission and of any change in the location of any such other office or agency.
Unless otherwise provided pursuant to Section 301 with respect to
the Securities of any series, the Company hereby designates the Borough of
Manhattan, The City of New York, as a Place of Payment for the Securities of
each series, initially appoints the Corporate Trust
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Office of the Trustee, in the Borough of Manhattan, The City of New York, as its
agency for the purposes of the first sentence of this Section and initially
appoints the Trustee, acting through its appropriate office in the Borough of
Manhattan, The City of New York, as Paying Agent, transfer agent and Security
Registrar for the Securities of each series, and the Trustee accepts such
appointments.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that series
and any related coupons, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on each due date of the principal of and any
premium or interest on any Securities of that series and any related coupons,
deposit with a Paying Agent a sum sufficient to pay the principal and any
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
and any premium or interest on Securities of that series and any related
coupons in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice in writing of any default by the
Company (or any other obligor upon the Securities of that series or any
related coupons) in the making of any payment of principal of and any
premium or interest on the Securities of that series or any related
coupons; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
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
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Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent or held
by the Company in trust for the payment of the principal of and any premium or
interest on any Security of any series or any related coupon and remaining
unclaimed for two years after such principal and any premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Officers' Certificate.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement signed by the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Controller or
an Assistant Controller of the Company, stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to him and
the nature and status thereof, and (b) no event has occurred and is
continuing which is, or upon notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
The Company will deliver a written notice to the Trustee promptly
after any officer of the Company has knowledge of the occurrence of any event
which with the giving of notice or the lapse of time or both would become an
Event of Default.
Section 1005. Additional Amounts.
If the Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Security of such
series or any coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent
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that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding additional amounts in those provisions
hereof where such express mention is not made.
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 and any 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 Paying Agent
or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. 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. The provisions of this
Section 1005 shall survive any removal or resignation of the Trustee.
Section 1006. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of each of the Company,
World FSB and World (Texas); provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
Section 1007. Limitation on Disposition of Voting Stock of World FSB and
World (Texas).
So long as any of the Securities shall be Outstanding but subject
to the provisions of Article Eight, the Company:
(1) will not, nor will it permit World FSB or World (Texas) to,
sell, assign, transfer or otherwise dispose of any shares of, securities
convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of World FSB or World (Texas), and will
not permit World FSB or World (Texas) to issue any shares of, or
securities convertible into or options, warrants or rights to subscribe
for or purchase
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shares of, such Voting Stock (other than sales of directors qualifying
shares) if, in each case, after giving effect to any such transaction
and to the issuance of the maximum number of shares of Voting Stock of
World FSB or World (Texas) issuable upon the exercise of all such
convertible securities, options, warrants or rights, World FSB or World
(Texas), as the case may be, would cease to be a Controlled Subsidiary,
or
(2) will not permit World FSB and World (Texas) to
(A) merge or consolidate with or into any other
corporation or other Person, unless the surviving or resulting
corporation or Person is the Company or is, or upon consummation
of the merger or consolidation will become, a Controlled
Subsidiary; or
(B) lease, sell, assign, or transfer all or substantially
all of its properties and assets to any corporation or other
Person, except to the Company or to a Controlled Subsidiary or a
Person that, upon such lease, sale, assignment or transfer, will
become a Controlled Subsidiary.
Notwithstanding the foregoing, any such sale, assignment,
transfer or other disposition of securities, any such merger or consolidation or
any such lease, sale, assignment or transfer of properties and assets shall not
be prohibited if required as a condition imposed by any law or any rule,
regulation or order of any governmental agency or authority to the acquisition
by the Company, directly or indirectly, through purchase of stock or assets,
merger, consolidation or otherwise, of any Person, provided that, upon and after
giving effect to such transaction, (i) such Person will be a Controlled
Subsidiary, (ii) the Company shall have entered into a supplemental Indenture to
this Indenture agreeing that all the provisions of this Indenture as they relate
to World FSB and World (Texas) (including, without limitation, Sections 501(5),
501(6), 501(7), 1006, 1008 and this 1007) shall also apply to such Person and
any Person that shall, after the date of such supplemental indenture, succeed
(whether by merger, consolidation, sale of assets or otherwise and whether in
one or more transactions or in successive transactions) to all or a substantial
part of the business or assets of such Person, (iii) immediately after giving
effect to such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing, (iv) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
transaction and supplemental indenture comply with this Section 1007 and that
all conditions precedent herein provided for relating to such transaction have
been complied with, and (v) the Consolidated Assets of the Company, immediately
after giving effect to such transaction, will be at least equal to the
Consolidated Assets of the Company immediately prior thereto. Nothing in this
Section shall prohibit the Company or any Controlled Subsidiary from the sale or
transfer of assets pursuant to any securitization transaction.
Section 1008. Limitation on Creation of Certain Liens.
So long as any of the Securities shall be outstanding, the
Company will not, nor will it permit World FSB or World (Texas) to, create,
assume, incur, or suffer to be created, assumed or incurred or to exist,
directly or indirectly, any indebtedness for borrowed money that is secured,
directly or indirectly, by any pledge of, or any encumbrance, security interest
or other
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lien on, any shares of, or securities convertible into or options, warrants or
rights to subscribe for or purchase shares of, Voting Stock of World FSB or
World (Texas), without making effective provision whereby the Securities of all
series shall be equally and ratably secured with any and all such indebtedness
if, treating such pledge, encumbrance, security interest or lien as a transfer
of the shares of, or securities convertible into or options, warrants or rights
to subscribe for or purchase shares of, Voting Stock of World FSB and World
(Texas) subject thereto to the secured party and after giving effect to the
issuance of the maximum number of shares of Voting Stock of World FSB or World
(Texas), as the case may be, issuable upon the exercise of all such convertible
securities, options, warrants or rights, World FSB or World (Texas), as the case
may be, would not continue to be a Controlled Subsidiary.
Section 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 1007 or 1008 with respect
to the Securities of any series if, before the time for such compliance, the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series, by Act of such Holders, either shall waive such compliance in
such instance or generally shall have waived 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.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities of any series with the same (i)
Stated Maturity, (ii) period or periods within which, price or prices at which
and terms and conditions upon which such Securities may or shall be redeemed or
purchased, in whole or in part, at the option of the Company or pursuant to any
sinking fund or analogous provision or repayable at the option of the Holder,
(iii) rate or rates at which the Securities bear interest, if any, or formula
pursuant to which such rate or rates accrue, (iv) date or dates on which
interest shall be payable and (iv) currencies in which such Securities are
denominated and payable (collectively, the "Equivalent Principal Terms"), 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 and with such Equivalent Principal
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Terms to be redeemed. In the case of any redemption of Securities (i) prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities with Equivalent Principal Terms or elsewhere in this Indenture,
or (ii) pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities with Equivalent Principal Terms, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities with Equivalent Principal Terms
of any series are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities with Equivalent Principal Terms of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Registered
Securities with Equivalent Principal Terms of such series of a denomination
larger than the minimum authorized denomination for Securities with Equivalent
Principal Terms of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date. With respect to Registered
Securities, at least two business days before the mailing of notices to the
Holders of the Securities, the Trustee shall also give notice of redemption by
(i) registered or certified mail, postage prepaid, (ii) confirmed facsimile
transmission or (iii) overnight delivery service to all registered securities
depositories then in the business of holding substantial amounts of obligations
of types comprising the Securities to be redeemed (such depositories now being
Depository Trust Company of New York, New York; Midwest Securities Trust Company
of Chicago, Illinois; and Philadelphia Depository Trust Company of Philadelphia,
Pennsylvania).
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities with Equivalent
Principal Terms of any series are to be redeemed, the identification
(and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date unless the Company shall default in the payment of the Redemption
Price plus accrued interest,
(5) the place or places 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,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the CUSIP number of the Securities, if any.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company in which
event the Company shall provide the Trustee with the information required by
Clauses (1) through (7) above.
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, segregate and hold in trust as provided in Section 1003) an amount
of money in immediately available funds sufficient to pay the Redemption Price
of, and (if accrued interest is to be paid to the Persons surrendering the
relevant Securities for redemption) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall 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 (if
accrued interest is to be paid to the Persons surrendering the relevant
Securities for redemption) with accrued interest to the Redemption Date;
provided, however, 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, unless otherwise specified as contemplated by
Section 301, installments of interest on
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Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
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,
however, 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.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security or with respect to such Securities pursuant to Section 301, as the
case may be, or, if no such interest rate is prescribed therefor, at the
interest rate or rates borne by such Securities.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
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 Registered Security or Securities of the
same series and of like tenor and terms, 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.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any
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payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a 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 (2) may apply as a credit Securities of a 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, in each case under Clause (1)
or (2) above in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series; provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of any series or such shorter period as shall be satisfactory to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. 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.
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all 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 1302. 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 1301, to be held
at such time and at such place in the Borough of Manhattan, the City of New York
or, if the Securities of such series are Bearer Securities, 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 1301, 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, if the Securities of
such series are Bearer Securities, 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 1303. 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 (1) a Holder of one or more Outstanding Securities
of such series, or (2) 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 1304. Quorum; Action.
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, however, that if any action
is to be taken at such meeting with respect to a request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture or the
Securities of any series expressly provides may be given, made or taken by the
Holders of not less than 66-2/3% in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote 66-2/3% 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 meeting may be further adjourned for a period
of not less than 10 days as determined
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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 1302(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 an 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.
Except as limited by the proviso to the first paragraph of
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 a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to the first paragraph of Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture or the Securities of any series
expressly provides may be given, made or taken by the Holders of not less than
66-2/3% 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 only by the affirmative vote of the Holders of
66-2/3% in principal amount of the Outstanding Securities of that series; and
provided, further, that, except as limited by the proviso to the first paragraph
of Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or the Securities of any series 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 such
specified percentage in principal amount of the Outstanding Securities of that
series.
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 a series and the related coupons,
whether or not present or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee 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.
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(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall 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 and
each 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,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 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 1306. 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 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 such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1302 and, if
applicable, Section 1304. 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 latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance and Covenant Defeasance.
Unless the Company elects, pursuant to Section 301, not to permit
the application of either or both of (a) defeasance of the Securities of a
series under Section 1402 or (b) covenant defeasance of the Securities of 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 Fourteen,
shall be applicable to the Securities of such series, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of such
series, elect to have Section 1402 (if applicable) or Section 1403 (if
applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article Fourteen. Subject
to compliance with the applicable provisions of this Article Fourteen, the
Company may exercise its option under Section 1402 notwithstanding the prior
exercise of its option under Section 1403 with respect to the Securities of such
series.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of its option to effect a defeasance
of the Securities of a series pursuant to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth below
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 the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities 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: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1404 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when such payments are due, (B)
the provisions of Sections 304, 305, 306, 307, 1002, 1003 and 1005 insofar as
such Sections relate to the Securities of such series, (C) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder and the payment
obligations to any Authenticating Agent under Section 614 and (D) this Article
Fourteen.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of its option to effect a covenant
defeasance of the Securities of a series pursuant to this Section, the Company
shall be released from its obligations under Sections 1007 and 1008, with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, 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, whether directly or
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indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1404. Conditions to Defeasance and Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or 1403 to the Outstanding Securities of a series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree in writing to comply with
the provisions of this Article Fourteen 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, (A) money in an amount, or (B) U.S.
Government Obligations 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,
money in immediately available funds in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of and any premium and each installment of
principal of and any premium and interest on the Outstanding Securities
of such series on the Stated Maturity of such principal or installment
of principal or interest (including any additional amounts that may be
required pursuant to Section 1005); (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities
of such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and
(iii) any amounts that may be payable at the option of the Holders of
the Securities of such series on any Repayment Date;
(2) Such defeasance or covenant defeasance, as the case may be,
shall not cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 608 and for purposes of the
Trust Indenture Act with respect to any securities of the Company;
(3) Such defeasance or covenant defeasance, as the case may be,
shall not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(4) Such defeasance or covenant defeasance, as the case may be,
shall not cause any Securities of such series then listed on any
registered national securities exchange under the Securities Exchange
Act of 1934, as amended, to be delisted;
(5) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable federal
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income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Outstanding
Securities of such series 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 and (ii) in the case of Bearer Securities, there will be no
adverse federal tax consequences to the Holders of such Bearer
Securities as a result of such defeasance;
(6) 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 (i) the Holders of the Outstanding Securities of such series 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
and (ii) in the case of Bearer Securities, there will be no adverse
federal tax consequences to the Holders of such Bearer Securities as a
result of such covenant defeasance;
(7) Such defeasance or covenant defeasance, as the case may be,
shall be effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection therewith
pursuant to Section 301;
(8) The Company shall have delivered to the trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance under Section 1402 or
the covenant defeasance under Section 1403, as the case may be, have
been complied with; and
(9) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or, in the case of an election pursuant to Section
1402, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that, in the case of an
election under Section 1402, this condition shall not be deemed
satisfied until the expiration of such period).
Section 1405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (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 the Outstanding Securities of any series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities 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, of all sums due and to become due
thereon in respect of principal and any premium and interest, but such money
need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. 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 the Outstanding Securities of such
series. Such obligation shall survive any removal or resignation of the Trustee.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations 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 an equivalent defeasance or covenant
defeasance, as the case may be.
Section 1406. Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to
Section 1405) or any Paying Agent is unable to apply any moneys or U.S.
Government Obligations (or any proceeds therefrom) deposited pursuant to Section
1404 to pay any principal of or premium, if any, or interest, if any, on the
Securities of any series by reason of any legal proceeding or 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 the Securities of such series shall be revived and reinstated
as though no such deposit had occurred, until such time as the Trustee (or other
qualifying trustee) or Paying Agent is permitted to apply all such moneys and
U.S. Government Obligations (or any proceeds therefrom) to pay the principal of
and premium, if any, and interest, if any, on the Securities of such series as
contemplated by Sections 1404 and 1405; provided, however, that if the Company
makes any payment of the principal of or premium, if any, or interest, if any,
on the Securities of such series following the reinstatement of its obligations
as aforesaid, the Company shall be subrogated to the rights of the Holders of
such Securities to receive, after payment in full of the principal of and
premium, if any, and interest, if any, on such Securities, such payment from the
trust funds so held by the Trustee (or other qualifying trustee) or Paying
Agent.
ARTICLE FIFTEEN
[Reserved]
ARTICLE SIXTEEN
Repayment at the Option of Securityholders
Section 1601. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as
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otherwise contemplated by Section 301 for Securities of such series) in
accordance with this Article.
Section 1602. Repayment of Securities.
Each Security which is subject to repayment in whole or in part
at the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
Section 1603. Exercise of Option; Notice.
Each Holder desiring to exercise his option for repayment shall,
as conditions to such repayment, surrender the Security to be repaid together
with all coupons, if any, appertaining thereto maturing after the Repayment Date
and with written notice of the exercise of such option at any office or agency
of the Company in a Place of Payment, not less than 15 nor more than 30 days
prior to the Repayment Date. Such notice, which shall be irrevocable, shall
identify the Security to be repaid and shall, in the case of a Registered
Security, specify the principal amount of such Security to be repaid, which
shall be not less than the minimum authorized denomination for such Security or
an integral multiple thereof and, in the case of a partial repayment of the
Registered Security, the denomination or denominations of the Security or
Securities of like tenor and terms as the Security so surrendered to be issued
to the Holder for the portion of the principal of the Security surrendered which
is not to be repaid.
Any Registered Security which is to be repaid only in part 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 Registered Security or Securities of like
tenor and terms as the Security so surrendered 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.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid or with
respect to such Securities pursuant to Section 301, as the case may be, or, if
no such interest rate is prescribed therefor, at the interest rate or rates
borne by such Securities.
Section 1604. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given
and the Securities so to be repaid having been surrendered as aforesaid, such
Securities shall, on the Repayment Date, become due and payable at the Repayment
Price therein specified and from and after such date (unless the Company shall
default in the payment of the Repayment Price and accrued interest) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Security so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with Section 1603
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together with all coupons, if any, appertaining thereto maturing after the
Repayment Date, such Security shall be paid by the Company at the Repayment
Price, together with accrued interest to the Repayment Date; provided, however,
that installments of interest on Bearer Securities 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 as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and provided, further,
that, unless otherwise specified as contemplated by Section 301, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Repayment 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.
On or prior to any Repayment Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in immediately available funds sufficient to pay the Repayment Price
of, and (if accrued interest is to be paid to the Persons surrendering the
relevant Securities for repayment) accrued interest on, all the Securities which
are to be repaid on that date.
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 Repayment 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 Repayment Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security duly surrendered for repayment shall not be so
paid, the principal and any premium and interest shall, until paid and to the
extent permitted by law, bear interest from the Repayment Date at the rate
prescribed therefor in the Security or with respect to such Securities pursuant
to Section 301, as the case maybe, or, if no such interest rate is prescribed
therefor, at the interest rate or rates borne by such Securities.
ARTICLE SEVENTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1701. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof,
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shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor Person, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
Person, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or inferred therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of such Securities.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first written above.
GOLDEN WEST FINANCIAL CORPORATION
[SEAL]
By /s/ Russell W. Kettell
--------------------------------------
Name: Russell W. Kettell
Title: President
Attest: /s/ Michael Roster
----------------------------
Name: Michael Roster
Title: Secretary
BANKERS TRUST COMPANY
[SEAL]
By /s/ Tracy Salzmann
--------------------------------------
Name: Tracy Salzmann
Title: Associate
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ALL PURPOSE ACKNOWLEDGEMENT
State of California )
County of Alameda )
On 8/3/01 before me, JAN DENNY, NOTARY PUBLIC,
------ ------------------------------------------------------
DATE NAME, TITLE OF OFFICER E.G., "JANE DOE, NOTARY PUBLIC"
personally appeared RUSSELL W. KETTELL
----------------------------
NAME(S) OF SIGNER(S)
[x] personally known to me - OR - [ ] proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
[Notary Seal] Witness my hand and official seal.
/s/ Jan Denny
----------------------------------
SIGNATURE OF NOTARY
- --------------------------------------------------------------------------------
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE Title or Type of Document Senior Debt Indenture
MUST BE ATTACHED Number of Pages_____ Date of Document 8/8/01
TO THE DOCUMENT
DESCRIBED AT RIGHT: Signer(s) Other than Named Above________________
CAPACITY CLAIMED BY SIGNER
[ ] INDIVIDUAL
[X] CORPORATE PRESIDENT
OFFICER(S)___________________
TITLE(S)
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER:_______________________
_______________________
_______________________
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
GOLDEN WEST FINANCIAL CORP.
_________________________________
94
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.
On the 6th day of August, 2001, before me, a Notary Public in
and for said County and State, personally appeared Tracy Salzmann, known to me
to be the Associate of Bankers Trust Company, one of the corporations described
in and which executed the foregoing instrument, and known to me to be the
person who executed the within instrument on behalf of Bankers Trust Company;
that he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; and that he/she acknowledged to me that
Bankers Trust Company executed the within instrument pursuant to its bylaws or
a resolution of its board of directors.
Witness my hand and official seal.
/s/ Lisa Wahl
Notary Public in and for said County and State
[Notary Seal]
95
EXHIBIT A
(Forms of Certification)
Exhibit A.1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
GOLDEN WEST FINANCIAL CORPORATION
[Insert title or sufficient description of
Securities to be delivered]
Reference is hereby made to the Indenture dated as of August 8,
2001 (the "Indenture") between Golden West Financial Corporation and Bankers
Trust Company, as trustee (the "Trustee") covering the above-captioned
Securities (the "Securities"). This is to certify that as of the date hereof,
__________________ principal amount of Securities credited to you for our
account (i) is owned by persons that are not United States Persons, as defined
below; (ii) is owned by United States Persons that are (a) foreign branches of
United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) United States Persons 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 encloses herewith a certificate in the form of Exhibit A.2 to the
Indenture); or (iii) is owned by United States or foreign financial institutions
for purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), which United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) certify 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.
We undertake to advise you by tested telex followed by written
confirmation if the above statement as to beneficial ownership is not correct on
the earlier of the date of delivery to us of the above-captioned Securities in
bearer form or the first date of payment of interest as to all of such
Securities as then appear in your books as being held for our account. We
understand that this certificate is required in connection with United States
tax laws. We irrevocably authorize you to produce this certificate or a copy
hereof to any interested party in any administrative or legal proceedings with
respect to the matters covered by this certificate. "United States Person" shall
mean a citizen or resident of the United States of America (including the States
and the District of Columbia) (the "United States"), a corporation, partnership
or other entity created or organized in or under the laws of the United States
or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
A.1-1
96
[This certificate excepts and does not relate to _____________
principal amount of Securities credited to you for our account and to which we
are not now able to make the certification set forth above. We understand that
definitive Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Securities.]*
Dated:
[To be dated on or after_____________________ (the date determined as provided
in the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
----------------------------------------
(Authorized Signatory)
Name:
-----------------------------------
Title:
----------------------------------
- ----------
* Delete if inappropriate
A.1-2
97
Exhibit A.2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
GOLDEN WEST FINANCIAL CORPORATION
[Insert title or sufficient description
of Securities to be delivered]
Reference is hereby made to the Indenture dated as of August 8,
2001 (the "Indenture"), between Golden West Financial Corporation and Bankers
Trust Company, as trustee, relating to the offering of the above-captioned
Securities (the "Securities").
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or it
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the earlier of the date of delivery of the above-captioned Securities
in bearer form or the first date of payment of interest with respect to such of
the Securities as they appear on your books as being held for our account.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
"United States Person" shall mean a citizen or resident of the United States of
America (including the States and the District of Columbia) (the "United
States"), a corporation, partnership or other entity created or organized in or
under the laws of the United States or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
A.2-1
98
[This certificate excepts and does not relate to ________________
principal amount of Securities credited to you for our account and to which we
are not now able to make the certification set forth above. We understand that
definitive Securities cannot be delivered and interest cannot be paid until we
are able to so certify with respect to such principal amount of Securities.]*
Dated:
[To be dated on or after _____________________ (the date determined as provided
in the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
----------------------------------------
(Authorized Signatory)
Name:
-----------------------------------
Title:
----------------------------------
- ----------
* Delete if inappropriate
A.2-2
99
Exhibit A.3
[Form of Certificate to be Given by Euroclear
and Clearstream in Connection with the Exchange
of All or a Portion of a Temporary Global
Security or to Obtain Interest Prior to Exchange]
Certificate
GOLDEN WEST FINANCIAL CORPORATION
[Insert title or sufficient description of
Securities to be delivered]
We refer to that portion, ______________________, of the Global
Security representing the above-captioned issue of securities (the "Securities")
[which is herewith submitted to be exchanged for definitive Securities]* [for
which we are seeking to obtain payment of interest]* (the "Submitted Portion").
This is to certify, pursuant to the Indenture dated as of August 8, 2001 (the
"Indenture") between Golden West Financial Corporation and Bankers Trust
Company, as trustee (the "Trustee"), that we have received in writing, by tested
telex or by electronic transmission from member organizations with respect to
each of the persons appearing in our records as being entitled to a beneficial
interest in the Submitted Portion a Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons [and, in some cases, a
Certificate of Status as a Foreign Branch of a United States Financial
Institution authorizing us to inform the issuer or the issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 and the regulations thereunder]* substantially in
the form of Exhibit A.1 [and A.2]* to the Indenture.
[Insert if certificate relates to the delivery of Securities in
bearer form -- We hereby request that you deliver to the office of
______________ in _____________ definitive Securities in bearer form in the
denominations on the attached Schedule A.]*
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
Dated:
--------------
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[Clearstream Banking S.A.]
By
--------------------------------------
- ------------------
* Delete if inappropriate
A.3-1
100
GOLDEN WEST FINANCIAL CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of August 8, 2001
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
Section 310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 609
(b) 608, 610
(c) Not Applicable
Section 311 (a) 613(a)
(b) 613(b)
(b)(2) 703(a)(3), 703(b)
Section 312 (a) 701, 702(a)
(b) 702(b)
(c) 702(c)
Section 313 (a) 703(a)
(b) 703(b)
(c) 703(c)
(d) 703(d)
Section 314 (a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 601(a)
(b) 602, 703(a)(7)
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
Section 316 (a) 101
(a)(1)(A) 104(f), 502, 512
(a)(1)(B) 104(f), 513
(a)(2) Not Applicable
(b) 508
(c) 104(f)
Section 317 (a)(1) 503
(a)(2) 504
101
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
(b) 1003
Section 318 (a) 108
(c) 108
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.