TABLE
OF CONTENTS
|
ARTICLE
ONE
|
1
|
|
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
|
Section
1.01.
|
Definitions
|
1
|
|
|
Section
1.02.
|
Compliance
Certificates and Opinions
|
11
|
|
|
Section
1.03.
|
Form
of Documents Delivered to Trustee
|
11
|
|
|
Section
1.04.
|
Notices,
Etc. to Trustee and Company
|
12
|
|
|
Section
1.05.
|
Notice
to Holders; Waiver
|
13
|
|
|
Section
1.06.
|
Conflict
with Trust Indenture Act
|
13
|
|
|
Section
1.07.
|
Effect
of Headings and Table of Contents
|
14
|
|
|
Section
1.08.
|
Successors
and Assigns
|
14
|
|
|
Section
1.09.
|
Separability
Clause
|
14
|
|
|
Section
1.10.
|
Benefits
of Indenture
|
14
|
|
|
Section
1.11.
|
Governing
Law
|
14
|
|
|
Section
1.12.
|
Jurisdiction;
Venue
|
14
|
|
|
Section
1.13.
|
Waiver
of Jury Trial
|
15
|
|
|
Section
1.14.
|
Legal
Holidays
|
15
|
| |
Section
1.15.
|
Liability
Solely Corporate |
15 |
| |
Section
1.16.
|
Counterparts |
15 |
| |
Section
1.17.
|
Force
Majeure |
15 |
|
ARTICLE
TWO
|
15
|
|
SECURITY
FORMS
|
15
|
|
|
Section
2.01.
|
Forms
Generally
|
15
|
|
|
Section
2.02.
|
Form
of Trustee’s Certificate of Authentication
|
16
|
|
|
Section
2.03.
|
Securities
in Global Form
|
16
|
|
ARTICLE
THREE
|
16
|
|
THE
SECURITIES
|
16
|
|
|
Section
3.01.
|
Amount
Unlimited; Issuable in Series
|
16
|
|
|
Section
3.02.
|
Denominations
|
20
|
|
|
Section
3.03.
|
Execution,
Authentication, Delivery and Dating
|
20
|
|
|
Section
3.04.
|
Temporary
Securities; Exchange of Temporary Global Notes for Definitive Bearer
Securities; Global Notes Representing Registered
Securities
|
22
|
|
|
Section
3.05.
|
Registration,
Transfer and Exchange
|
28
|
|
|
Section
3.06.
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
30
|
|
|
Section
3.07.
|
Payment
of Interest; Interest Rights Preserved
|
31
|
|
|
Section
3.08.
|
Cancellation
|
33
|
|
|
Section
3.09.
|
Computation
of Interest
|
33
|
|
|
Section
3.10.
|
Currency
of Payments in Respect of Securities
|
33
|
|
|
Section
3.11.
|
Judgments
|
37
|
|
|
Section
3.12.
|
Exchange
Upon Default
|
|
|
ARTICLE
FOUR
|
37
|
|
SATISFACTION
AND DISCHARGE
|
37
|
|
|
Section
4.01.
|
Satisfaction
and Discharge of Indenture
|
37
|
|
|
Section
4.02.
|
Application
of Trust Money
|
39 |
|
ARTICLE
FIVE
|
39
|
|
REMEDIES
|
39
|
|
|
Section
5.01.
|
Events
of Default
|
39
|
|
|
Section
5.02.
|
Acceleration
of Maturity; Rescission and Annulment
|
41
|
|
|
Section
5.03.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
42
|
|
|
Section
5.04.
|
Trustee
May File Proofs of Claim
|
43
|
|
|
Section
5.05.
|
Trustee
May Enforce Claims Without Possession of Securities
|
44
|
|
|
Section
5.06.
|
Application
of Money Collected
|
44
|
|
|
Section
5.07.
|
Limitation
on Suits
|
44
|
|
|
Section
5.08.
|
Unconditional
Right of Holders to Receive Principal, Premium and
Interest
|
45
|
|
|
Section
5.09.
|
Restoration
of Rights and Remedies
|
45
|
|
|
Section
5.10.
|
Rights
and Remedies Cumulative
|
45
|
|
|
Section
5.11.
|
Delay
or Omission Not Waiver
|
46
|
|
|
Section
5.12.
|
Control
by Holders
|
46
|
|
|
Section
5.13.
|
Waiver
of Past Defaults
|
46
|
|
|
Section
5.14.
|
Undertaking
for Costs
|
47
|
|
|
Section
5.15.
|
Waiver
of Stay or Extension Laws
|
47
|
|
ARTICLE
SIX
|
47
|
|
THE
TRUSTEE
|
47
|
|
|
Section
6.01.
|
Certain
Duties and Responsibilities
|
47
|
|
|
Section
6.02.
|
Notice
of Defaults
|
47
|
|
|
Section
6.03.
|
Certain
Rights of Trustee
|
48
|
|
|
Section
6.04.
|
Not
Responsible for Recitals or Issuance of Securities
|
49
|
|
|
Section
6.05.
|
May
Hold Securities
|
49
|
|
|
Section
6.06.
|
Money
Held in Trust
|
49
|
|
|
Section
6.07.
|
Compensation
and Reimbursement
|
49
|
|
|
Section
6.08.
|
Disqualification;
Conflicting Interests
|
50
|
|
|
Section
6.09.
|
Corporate
Trustee Required; Eligibility
|
50
|
|
|
Section
6.10.
|
Resignation
and Removal; Appointment of Successor
|
50
|
|
|
Section
6.11.
|
Acceptance
of Appointment by Successor
|
52
|
|
|
Section
6.12.
|
Merger,
Conversion, Consolidation or Succession to Business
|
53
|
|
|
Section
6.13.
|
Preferential
Collection of Claims Against Company
|
53
|
|
|
Section
6.14.
|
Appointment
of Authenticating Agent
|
53
|
|
ARTICLE
SEVEN
|
55
|
|
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
55
|
|
|
Section
7.01.
|
Company
to Furnish Trustee Names and Addresses of Holders
|
55
|
|
|
Section
7.02.
|
Preservation
of Information; Communication to Holders
|
55
|
|
|
Section
7.03.
|
Reports
by Trustee
|
56
|
|
|
Section
7.04.
|
Reports
by Company
|
56
|
|
ARTICLE
EIGHT
|
|
56
|
|
CONCERNING
THE HOLDERS
|
56
|
|
|
Section
8.01.
|
Acts
of Holders
|
56
|
|
|
Section
8.02.
|
Proof
of Ownership; Proof of Execution of Instruments by Holder
|
57
|
|
|
Section
8.03.
|
Persons
Deemed Owners
|
58
|
|
|
Section
8.04.
|
Revocation
of Consents; Future Holders Bound
|
58
|
|
ARTICLE
NINE
|
58
|
|
HOLDERS’
MEETINGS
|
58
|
|
|
Section
9.01.
|
Purposes
of Meetings
|
58
|
|
|
Section
9.02.
|
Call
of Meetings by Trustee
|
59
|
|
|
Section
9.03.
|
Call
of Meetings by Company or Holders
|
59
|
|
|
Section
9.04.
|
Qualifications
for Voting
|
59
|
|
|
Section
9.05.
|
Regulations
|
59
|
|
|
Section
9.06.
|
Voting
|
60
|
|
|
Section
9.07.
|
No
Delay of Rights by Meeting
|
60
|
|
ARTICLE
TEN
|
61
|
|
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
61
|
|
|
Section
10.01.
|
Company
May Consolidate, Etc., Only on Certain Terms
|
61
|
|
|
Section
10.02.
|
Successor
Corporation Substituted
|
61
|
|
ARTICLE
ELEVEN
|
62
|
|
SUPPLEMENTAL
INDENTURES
|
62
|
|
|
Section
11.01.
|
Supplemental
Indentures Without Consent of Holders
|
62
|
|
|
Section
11.02.
|
Supplemental
Indentures With Consent of Holders
|
63
|
|
|
Section
11.04.
|
Execution
of Supplemental Indentures
|
64
|
|
|
Section
11.05.
|
Effect
of Supplemental Indentures
|
65
|
|
|
Section
11.06.
|
Conformity
with Trust Indenture Act
|
65
|
|
|
Section
11.07.
|
Reference
in Securities to Supplemental Indentures
|
65
|
|
|
Section
11.08.
|
Notice
of Supplemental Indenture
|
65
|
|
ARTICLE
TWELVE
|
65
|
|
COVENANTS
|
65
|
|
|
Section
12.01.
|
Payment
of Principal, Premium and Interest
|
65
|
|
|
Section
12.02.
|
Officer’s
Certificate as to Default
|
66
|
|
|
Section
12.03.
|
Maintenance
of Office or Agency
|
66
|
|
|
Section
12.04.
|
Money
for Securities; Payments To Be Held in Trust
|
67
|
|
|
Section
12.05.
|
Corporate
Existence
|
68
|
|
|
Section
12.06.
|
Purchase
of Securities by Company
|
68
|
|
|
Section
12.07.
|
Limitation
Upon Mortgages and Liens
|
69
|
|
|
Section
12.08.
|
Limitation
Upon Sale and Leaseback Transactions
|
71
|
|
|
Section
12.09.
|
Waiver
of Certain Covenants
|
72
|
|
ARTICLE
THIRTEEN
|
72
|
|
REDEMPTION
OF SECURITIES
|
72
|
|
|
Section
13.01.
|
Applicability
of Article
|
72
|
|
|
Section
13.02.
|
Election
to Redeem; Notice to Trustee
|
72
|
|
|
Section
13.03.
|
Selection
by Trustee of Securities to Be Redeemed
|
73
|
|
|
Section
13.04.
|
Notice
of Redemption
|
73
|
|
|
Section
13.05.
|
Deposit
of Redemption Price
|
74
|
|
|
Section
13.06.
|
Securities
Payable on Redemption Date
|
74
|
|
|
Section
13.07.
|
Securities
Redeemed in Part
|
75
|
|
ARTICLE
FOURTEEN
|
75
|
|
SINKING
FUNDS
|
75
|
|
|
Section
14.01.
|
Applicability
of Article
|
75
|
|
|
Section
14.02.
|
Satisfaction
of Mandatory Sinking Fund Payments with Securities
|
76
|
|
|
Section
14.03.
|
Redemption
of Securities for Sinking Fund
|
76
|
|
ARTICLE
FIFTEEN
|
78
|
|
DEFEASANCE
|
78
|
|
|
Section
15.01.
|
Applicability
of Article
|
78
|
|
|
Section
15.02.
|
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
78
|
|
|
Section
15.03.
|
Defeasance
and Discharge
|
78
|
|
|
Section
15.04.
|
Covenant
Defeasance
|
79
|
|
|
Section
15.05.
|
Conditions
to Defeasance or Covenant Defeasance
|
79
|
|
|
Section
15.06.
|
Deposited
Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions; Covenant Defeasance
|
81
|
|
|
Section
15.07.
|
Reinstatement
|
82
|
|
ARTICLE
SIXTEEN
|
82
|
|
|
Section
16.01.
|
Agreement
of Subordination
|
82
|
|
|
Section
16.02.
|
Payments
to Holders
|
83
|
|
|
Section
16.03.
|
Subrogation
of Securities
|
84
|
|
|
Section
16.04.
|
Authorization
by Holders
|
85
|
|
|
Section
16.05.
|
Notice
to Trustee
|
85
|
|
|
Section
16.06.
|
Trustee’s
Relation to Senior Indebtedness
|
86
|
|
|
Section
16.07.
|
No
Impairment of Subordination
|
86
|
|
|
Section
16.08.
|
Rights
of Trustee
|
87
|
|
|
Section
16.09.
|
Applicable
to Paying Agents
|
87
|
Table
Showing Reflection in Indenture of Certain Provisions
of Trust
Indenture Act of 1939,
as
amended by the Trust Indenture Reform Act of 1990
Reflected in
Indenture
|
Trust
Indenture Act Section
|
Indenture
Section
|
|
|
|
|
|
|
§ 310
|
|
(a)(1)
|
6.09
|
|
|
|
(a)(2)
|
6.09
|
|
|
|
(a)(3)
|
Not
Applicable
|
|
|
|
(a)(4)
|
Not
Applicable
|
|
|
|
(a)(5)
|
6.09
|
|
|
|
(b)
|
6.08
|
|
|
|
(c)
|
Not
Applicable
|
|
§ 311
|
|
(a)
|
6.13
|
|
|
|
(b)
|
6.13
|
|
|
|
(c)
|
Not
Applicable
|
|
§ 312
|
|
(a)
|
7.01
|
|
|
|
|
7.02(a)
|
|
|
|
|
7.04
|
|
|
|
(b)
|
7.02(b)
|
|
|
|
(c)
|
7.02(c)
|
|
§ 313
|
|
(a)
|
7.03(a)
|
|
|
|
(b)
|
7.03(a)
|
|
|
|
(c)
|
7.03(a)
|
|
|
|
(d)
|
7.03(b)
|
|
§ 314
|
|
(a)(1)
|
7.04
|
|
|
|
(a)(2)
|
7.04
|
|
|
|
(a)(3)
|
7.04
|
|
|
|
(a)(4)
|
12.02
|
|
|
|
(b)
|
Not
Applicable
|
|
|
|
(c)(1)
|
1.02
|
|
|
|
(c)(2)
|
1.02
|
|
|
|
(c)(3)
|
Not
Applicable
|
|
|
|
(d)
|
Not
Applicable
|
|
|
|
(e)
|
1.02
|
|
§ 315
|
|
(a)
|
6.01
|
|
|
|
(b)
|
6.02
|
|
|
|
|
7.03
|
|
|
|
(c)
|
6.01
|
|
|
|
(d)(1)
|
6.01
|
|
|
|
(d)(2)
|
6.01
|
|
|
|
(d)(3)
|
6.01
|
|
|
|
(e)
|
5.14
|
|
§ 316
|
|
(a)(1)(A)
|
5.12
|
|
|
|
(a)(1)(B)
|
5.13
|
|
|
|
(a)(2)
|
Not
Applicable
|
|
|
|
(b)
|
5.08
|
|
|
|
(c)
|
Not
Applicable
|
|
§ 317
|
|
(a)(1)
|
5.03
|
|
|
|
(a)(2)
|
5.04
|
|
|
|
(b)
|
12.04
|
|
§ 318
|
|
(a)
|
1.06
|
Note: This
table shall not, for any purpose, be deemed to be part of the
Indenture.
Section 318(c)
of the Trust Indenture Act provides that the provisions of Sections 310 to
and including 317 of the Trust Indenture Act are a part of and govern every
qualified indenture, whether or not physically contained
therein.
Indenture,
dated as of _______________, 2010, between Equifax Inc., a Georgia corporation
(hereinafter called the “COMPANY”), having its principal executive office at
1550 Peachtree Street, N.W., Atlanta, Georgia 30309, and The Bank of New York
Mellon Trust Company, N.A., a national banking association (hereinafter called
the “TRUSTEE”), having its Corporate Trust Office at [__________________, New
York, NY _____].
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 debentures, notes, bonds or
other evidences of indebtedness, in an unlimited aggregate principal amount
(herein generally called the “SECURITIES”), to be issued in one or more series,
as in this Indenture provided, which may be subordinated in right of payment to
Senior Indebtedness.
All
things necessary have been done to make this Indenture a valid agreement of the
Company, in accordance with its terms.
Now,
Therefore, This Indenture Witnesseth:
For and
in consideration of the premises and the purchase of Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of Securities or of Securities of any series, as follows:
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS
OF
GENERAL APPLICATION
Section
1.01. Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(i) the
terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular;
(ii) all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(iii) all
accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term “GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES” with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the United
States of America at the date of such computation; and
(iv) 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 within an Article of this Indenture, may be defined in
that Article.
“ACT”
when used with respect to any Holder, has the meaning specified in Section
8.01.
“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.
“AFFILIATED
CORPORATION” means any corporation which is controlled by the Company but which
is not a Subsidiary of the Company pursuant to the definition of the term
“SUBSIDIARY”.
“AUTHENTICATING
AGENT” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate Securities.
“AUTHORIZED
NEWSPAPER” means a newspaper in an official language of the country of
publication customarily published at least once a day, and customarily published
for at least five days in each calendar week, 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 in such city.
“BEARER
SECURITY” means any Security (with or without Coupons), in the form established
pursuant to Section 2.01, which is payable to bearer (including any Global Note
payable to bearer) and title to which passes by delivery only, but does not
include any Coupons.
“BOARD OF
DIRECTORS” means any of the board of directors of the Company, any committee of
that board duly authorized to act hereunder, any committee consisting of one or
more directors and/or officers of the Company duly authorized to act hereunder,
or any one or more directors and/or officers of the Company 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 any day which
is not a Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies in that Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close, except
as otherwise specified pursuant to Section 3.01.
“CLEARSTREAM”
means Clearstream Banking, societe annonyme (as successor by merger to Cedel
S.A.)
“CODE”
means the Internal Revenue Code of 1986, as amended and as in effect on the date
hereof.
“COMMISSION”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any
time after the 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.
“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” or “COMPANY ORDER” means, respectively, a written request or order
signed in the name of the Company by the Chairman, the Chief Executive Officer,
the President, the Chief Financial Officer or a Corporate or Senior Vice
President of the Company 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.
“COMPONENT
CURRENCY” has the meaning specified in Section 3.10(i).
“CONSOLIDATED
STOCKHOLDERS’ EQUITY”, at any time, means the total stockholders’ equity of the
Company and its consolidated subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles, as of the end of the
most recently completed fiscal quarter of the Company for which financial
information is then available.
“CONVERSION
DATE” has the meaning specified in Section 3.10(e).
“CONVERSION
EVENT” means the cessation of (i) a Foreign Currency as provided by the
government of the country which issued such Currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, or (ii) any Currency unit (or composite
currency) for the purposes for which it was established.
“CORPORATE
TRUST OFFICE” means the corporate trust office of the Trustee at which at any
particular time this Indenture shall be administered, which office at the date
of execution of this instrument is located at 900 Ashwood Parkway, Suite 425,
Atlanta, GA 30338.
“CORPORATION”
means a corporation, association, company, limited liability company,
joint-stock company or business trust.
“COUPON”
means any interest coupon appertaining to a Bearer Security.
“COUPON
SECURITY” means any Bearer Security authenticated and delivered with one or more
Coupons appertaining thereto.
“CURRENCY”
means Dollars or Foreign Currency.
“CURRENCY
DETERMINATION AGENT” means the agent, if any, from time to time selected by the
Trustee for purposes of Section 3.10; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be acceptable to
the Company and shall, in the opinion of the Company and the Trustee at the time
of such appointment, require such agent to make the determinations required by
this Indenture by a method consistent with the method provided in this Indenture
for the making of such decision or determination.
“DEFAULTED
INTEREST” has the meaning specified in Section 3.07.
“DEFEASANCE”
has the meaning specified in Section 15.03.
“DISCOUNT
SECURITY” means any Security which is issued with “original issue discount”
within the meaning of Section 1273(a) of the Code and the regulations
thereunder.
“DOLLAR”
or “$” means a dollar or other equivalent unit in such coin or currency of the
United States as at the time of payment is legal tender for the payment of
public and private debts.
“DOLLAR
EQUIVALENT OF THE CURRENCY UNIT” has the meaning specified in Section
3.10(h).
“DOLLAR
EQUIVALENT OF THE FOREIGN CURRENCY” has the meaning specified in Section
3.10(g).
“ELECTION
DATE” has the meaning specified in Section 3.10(i).
“EUROCLEAR
OPERATOR” means Euroclear Bank, S.A./N.V., or its successor as operator of the
Euroclear System.
“EVENT OF
DEFAULT” has the meaning specified in Section 5.01.
“EXCHANGE
RATE OFFICER’S CERTIFICATE” means a telex or a certificate setting forth (i) the
applicable Market Exchange Rate and (ii) the Dollar, Foreign Currency or
Currency unit amounts of principal, premium, if any, and any interest
respectively (on an aggregate basis and on the basis of a Security having the
lowest denomination principal amount determined in accordance with Section 3.02
in the relevant Currency or Currency unit), payable on the basis of such Market
Exchange Rate sent (in the case of a telex) or signed (in the case of a
certificate) by the Treasurer or any Assistant Treasurer of the
Company.
“FIXED
RATE SECURITY” means a Security which provides for the payment of interest at a
fixed rate.
“FLOATING
RATE SECURITY” means a Security which provides for the payment of interest at a
variable rate determined periodically by reference to an interest rate index or
any other index specified pursuant to Section 3.01.
“FOREIGN
CURRENCY” means a currency, currency unit or composite currency issued by the
government of one or more countries other than the United States of America or
by any recognized confederation of associations of such
governments.
“FUNDED
DEBT” means any indebtedness for money borrowed, created, issued, incurred,
assumed or guaranteed which would, in accordance with generally accepted
accounting practice, be classified as long-term debt, but in any event including
all indebtedness for money borrowed, whether secured or unsecured, maturing more
than one year or extendible at the option of the obligor to a date more than one
year, after the date of determination thereof (excluding any amount thereof
included in current liabilities).
“GLOBAL
NOTE” means a Registered or Bearer Security evidencing all or part of a series
of Securities, including, without limitation, any temporary or permanent Global
Note.
“HOLDER”
means, with respect to a Registered Security, the Registered Holder, and with
respect to a Bearer Security or a Coupon, the bearer thereof.
“INDEBTEDNESS”
means (1) any liability of any Person (a) for borrowed money, or (b) evidenced
by a bond, note, debenture or similar instrument (including purchase money
obligations but excluding Trade Payables), or (c) for the payment of money
relating to a lease that is required to be classified as a capitalized lease
obligation in accordance with generally accepted accounting principles, or (d)
preferred or preference stock of a Subsidiary of the Company held by Persons
other than the Company or a Subsidiary of the Company; (2) any liability of
others described in the preceding clause (1) that the Person has guaranteed,
that is recourse to such Person or that is otherwise its legal liability; and
(3) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (1) and (2)
above.
“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, unless the context
otherwise requires, shall include the terms of a particular series of Securities
as established pursuant to Section 3.01.
The term
“INTEREST,” when used with respect to a Discount Security which by its terms
bears interest only after maturity, means interest payable after Maturity, and,
when used with respect to a Bearer Security, includes any additional amounts
payable on such Bearer Security, if so provided pursuant to Section
3.01.
“INTEREST
PAYMENT DATE” with respect to any Security means the Stated Maturity of an
installment of interest on such Security.
“MARKET
EXCHANGE RATE” means (i) for any conversion involving a Currency unit on the one
hand and Dollars or any Foreign Currency on the other, the exchange rate between
the relevant Currency unit and Dollars or such Foreign Currency calculated by
the method specified pursuant to Section 3.01 for the securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
(New York City time) buying rate for such Foreign Currency for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve
Bank of New York and (iii) for any conversion of one Foreign Currency into
Dollars or another Foreign Currency, the spot rate at noon local time in the
relevant market at which, in accordance with normal banking procedures, the
Dollars or Foreign Currency into which conversion is being made could be
purchased with the Foreign Currency from which conversion is being made from
major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency. In the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent, if any, or if
there shall not be a Currency Determination Agent, then the Trustee, shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or other
principal market for such Currency or Currency unit in question, or such other
quotations as the Currency Determination Agent or the Trustee, as the case may
be, shall deem appropriate. Unless otherwise specified by the
Currency Determination Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more than one market for
dealing in any Currency or Currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such Currency or
Currency unit shall be that upon which a nonresident issuer of securities
designated in such Currency or Currency unit would purchase such Currency or
Currency unit in order to make payments in respect of such
securities.
“MATURITY”,
when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder
thereof, required repurchase or otherwise.
“OFFICERS’
CERTIFICATE” means a certificate signed by the Chairman, a Vice Chairman, the
President, the Chief Financial Officer or a Vice President of the Company, 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 be counsel to the
Company (including an employee of the Company) and who shall be acceptable to
the Trustee, which is delivered to the Trustee.
“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;
(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 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 pertaining; provided, however, 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 3.06 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 Securities Outstanding have performed any Act hereunder, 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 Act, only Securities which 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. In determining whether the Holders of the requisite
principal amount of Outstanding Securities have performed any Act hereunder, the
principal amount of a Discount Security that shall be deemed to be Outstanding
for such purpose shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02 and the principal
amount of a Security denominated in a Foreign Currency that shall be deemed to
be Outstanding for such purpose shall be the amount calculated pursuant to
Section 3.10(k).
“OVERDUE
RATE”, when used with respect to the Securities of any series, means the rate
designated as such in or pursuant to the Board Resolution or the supplemental
indenture, as the case may be, relating to such series as contemplated by
Section 3.01.
“PAYING
AGENT” means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest, if any, on any Securities on behalf of the
Company.
“PERMANENT
GLOBAL NOTE” shall have the meaning given such term in Section
3.04(b).
“PERSON”
means any individual, corporation, partnership, limited liability partnership,
joint venture, trust, estate, unincorporated organization or government or any
agency or political subdivision thereof.
“PLACE OF
PAYMENT”, when used with respect to the Securities of any series, means the
place or places where the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified pursuant to Section
3.01.
“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 3.06 in lieu of a mutilated, lost, destroyed or stolen Security or a
Security to which a mutilated, lost, destroyed or stolen Coupon appertains shall
be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security or the Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
“PRINCIPAL
FACILITY” means the real property, fixtures, machinery and equipment relating to
any facility owned by the Company or any Subsidiary, except for any facility
that, in the opinion of the Board of Directors, is not of material importance to
the business conducted by the Company and its Subsidiaries, taken as a
whole.
“REDEMPTION
DATE”, when used with respect to a Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
“REDEMPTION
PRICE”, when used with respect to a Security to be redeemed, means the price at
which such Security is to be redeemed as established by or pursuant to this
Indenture, which, unless otherwise specified pursuant to Section 3.01, shall be
(i) in the case of any Security other than a Discount Security, the principal
amount thereof, plus, in each case, premium, if any, and accrued and unpaid
interest, if any, to the Redemption Date, and (ii) in the case of a Discount
Security, the amount of the principal thereof that would be due and payable as
of the Redemption Date upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.02.
“REGISTERED
HOLDER” means the Person in whose name a Registered Security is registered in
the Security Register.
“REGISTERED
SECURITY” means any Security in the form established pursuant to Section 2.01
which is registered as to principal and interest in the Security
Register.
“REGULAR
RECORD DATE” for the interest payable on the Registered Securities of any series
on any Interest Payment Date means the date specified for that purpose pursuant
to Section 3.01 for such Interest Payment Date.
“RESPONSIBLE
OFFICER”, when used with respect to the Trustee, means any officer of the
Trustee assigned by the Trustee to administer corporate trust
matters.
“SECURITIES”
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities (including any Global Notes) authenticated and
delivered under this Indenture.
“SECURITY
REGISTER” and “SECURITY REGISTRAR” have the respective meanings specified in
Section 3.05(a).
“SENIOR
INDEBTEDNESS” means, without duplication, the principal, premium (if any) and
unpaid interest on all present and future (i) indebtedness of the Company for
borrowed money, (ii) obligations of the Company evidenced by bonds, debentures,
notes or similar instruments, (iii) all obligations of the Company under (a)
interest rate swaps, caps, collars, options and similar arrangements, (b) any
foreign exchange contract, currency swap contract, futures contract, currency
option contract, or other foreign currency hedge, and (c) credit swaps, caps,
floors, collars and similar arrangements, (iv) indebtedness incurred, assumed or
guaranteed by the Company in connection with the acquisition by it or a
Subsidiary of any business, properties or assets (except purchase money
indebtedness classified as accounts payable under generally accepted accounting
principles), (v) all obligations and liabilities (contingent or otherwise) in
respect of leases of the Company required, in conformity with generally accepted
accounting principles, to be accounted for as capitalized lease obligations on
the balance sheet of the Company and all obligations and liabilities (contingent
or otherwise) under any lease or related document (including a purchase
agreement) in connection with the lease of real property which provides that the
Company is contractually obligated to purchase or cause a third party to
purchase the leased property and thereby guarantee a minimum residual value of
the leased property to the lessor and the obligations of the Company under such
lease or related document to purchase or to cause a third party to purchase such
leased property, (vi) reimbursement obligations of the Company in respect of
letters of credit relating to indebtedness or other obligations of the Company
that qualify as indebtedness or obligations of the kind referred to in clauses
(i) through (v) above, and (vii) obligations of the Company under direct or
indirect guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds referred to in
clauses (i) through (vi) above, in each case unless the instrument creating or
evidencing the indebtedness or obligation or pursuant to which the same is
outstanding expressly provides that such indebtedness or obligation is not
senior in right of payment to the Securities or expressly provides that such
indebtedness is subordinate to other indebtedness and obligations of the
Company.
“SPECIAL
RECORD DATE” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
“SPECIFIED
AMOUNT” has the meaning specified in Section 3.10(i).
“STATED
MATURITY”, when used with respect to any Security or any installment of
principal thereof or premium thereon or interest thereon, means the date
specified in such Security or the Coupon, if any, representing such installment
of interest, as the date on which the principal of such Security or such
installment of principal, premium or interest is due and
payable.
“SUBSIDIARY”
means any corporation of which at least a majority of the outstanding stock
having by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation, irrespective of whether or not, at the time,
stock of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency, is at the time,
directly or indirectly, owned or controlled by the Company or by one or more
Subsidiaries thereof, or by the Company and one or more
Subsidiaries.
“TEMPORARY
GLOBAL NOTE” shall have the meaning given such term in Section
3.04(b).
“TRADE
PAYABLES” means accounts payable or any other indebtedness or monetary
obligations to trade creditors created or assumed in the ordinary course of
business in connection with the obtaining of materials or services.
“TRUSTEE”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder, 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 such
series.
“TRUST
INDENTURE ACT” means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this
instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is further amended after the date as of which this
instrument was executed, “Trust Indenture Act” means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
“UNITED
STATES” means the United States of America (including the States and the
District of Columbia), and its possessions, which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
“U.S.
DEPOSITARY” means a clearing agency registered under the Securities Exchange Act
of 1934, as amended, or any successor thereto, which shall in either case be
designated by the Company pursuant to Section 3.01 until a successor U.S.
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “U.S. Depositary” shall mean or include each Person
who is then a U.S. Depositary hereunder, and if at any time there is more than
one such Person, “U.S. Depositary” as used with respect to the Securities of any
series shall mean the U.S. Depositary with respect to the Securities of that
series.
“U.S.
GOVERNMENT OBLIGATIONS” has the meaning specified in Section 15.05.
“U.S.
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, or an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
“VALUATION
DATE” has the meaning specified in Section 3.10(d).
“VICE
PRESIDENT” includes with respect to the Company and the Trustee, any Vice
President of the Company or the Trustee, as the case may be, whether or not
designated by a number or word or words added before or after the title “Vice
President”.
“WHOLLY-OWNED
SUBSIDIARY” means a Subsidiary of which all of the outstanding voting stock
(other than directors’ qualifying shares) is at the time, directly or
indirectly, owned by the Company, or by one or more Wholly-Owned Subsidiaries of
the Company or by the Company and one or more Wholly-Owned
Subsidiaries.
Section
1.02. Compliance Certificates and
Opinions.
Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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 12.02) shall include:
(i) a
statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(ii) 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;
(iii) 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
(iv) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section
1.03. 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
1.04. Notices, Etc. to Trustee and
Company.
Any Act
of Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(i) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder (unless otherwise expressly provided herein or in the terms of the
Securities of any series) if made, given, furnished or filed in writing, by
first-class mail, postage pre-paid (or airmail postage prepaid if sent from
outside the United States) or by facsimile transmission (to a facsimile number
to be furnished by the Trustee) or by hand delivery (including any courier
service), to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(ii) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise expressly provided herein or in the terms of the
Securities of any series) if in writing and mailed, first-class postage prepaid
or airmail postage prepaid if sent from outside the United States, or by
facsimile transmission (to a facsimile number to be furnished by the Company) or
by hand delivery (including any courier service), 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 or
facsimile number previously furnished in writing to the Trustee by the
Company.
Any such
Act or other document shall be in the English language, except that any
published notice may be in an official language of the country of
publication.
Section
1.05. Notice to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, (1) such notice
shall be sufficiently given to Registered Holders (unless otherwise expressly
provided herein or in the terms of the Securities of any series) if in writing
and mailed, first-class postage prepaid, to such Registered Holders as their
names and addresses appear in the Security Register, within the time prescribed,
and (2) such notice shall be sufficiently given to Holders of Bearer Securities
or Coupons (unless otherwise herein expressly provided) if published at least
twice in an Authorized Newspaper or Newspapers in The City of New York and, if
Securities of such series are then listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, in a daily newspaper in London or Luxembourg or in such other
city or cities specified pursuant to Section 3.01 or in any Security on Business
Days, the first such publication to be not earlier than the earliest date and
not later than two Business Days prior to the latest date prescribed for the
giving of such notice; provided, however, that, in any case, any notice to
Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.01, shall be
sufficiently given if given in the manner specified pursuant to Section
3.01.
In any
case where notice to Holders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. In any case where notice to Holders
is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect
to other Holders, and any notice which is published in the manner herein
provided shall be conclusively presumed to have been duly
given. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In 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 by mail, then such other
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In case
by reason of the suspension of publication of any Authorized Newspapers or by
reason of any other cause it shall be impracticable to give such notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose
hereunder.
Section
1.06. Conflict with Trust Indenture
Act.
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may
be.
Section
1.07. 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
1.08. Successors and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section
1.09. Separability Clause.
In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
1.10. Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders of Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section
1.11. Governing Law.
This
Indenture, the Securities and the Coupons shall be governed by and construed in
accordance with the laws of the State of New York.
Section
1.12. Jurisdiction;
Venue
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE SECURITIES AND THE TRANSACTIONS CONTEMPLATED
HEREUNDER, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
Section 1.13 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
1.14. Legal Holidays.
Unless
otherwise specified pursuant to Section 3.01 or in any Security, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security of any series shall not be a Business Day at any Place of Payment for
the Securities of that series, then (notwithstanding any other provision of this
Indenture or of the Securities or Coupons) payment of principal (and premium, if
any) or interest 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 or Redemption Date
or at the Stated Maturity, and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business Day if such payment is
made or duly provided for on such Business Day.
Section
1.15. Liability Solely Corporate.
No
recourse shall be had for the payment of the principal of (or premium, if any)
or interest on any Security or Coupon, or any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company, either directly or through the Company or any successor, 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 agreed and understood
that this Indenture and all the Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, stockholder, officer or director, past,
present or future, of the Company, either directly or indirectly through the
Company or any such successor, because of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Securities or Coupons or to be implied
herefrom or therefrom; and that any such personal liability is hereby expressly
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issuance of the Securities.
Section
1.16. Counterparts.
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be an original, but all such counterparts shall constitute but
one and the same instrument.
Section 1.17 Force Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
ARTICLE
TWO
SECURITY
FORMS
Section
2.01. Forms Generally.
The
Securities and the Coupons, if any, of each series shall be substantially in one
of the forms (including global form) established in or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, and shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which any series of the Securities may
be listed, or to conform to usage, all as determined by the officers executing
such Securities and Coupons as conclusively evidenced by their execution of such
Securities and Coupons. If the form of a series of Securities or
Coupons (or any Global Note) is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be delivered to the Trustee,
together with an Officers’ Certificate setting forth the form of such series, at
or prior to the delivery of the Company Order contemplated by Section 3.03 for
the authentication and delivery of such Securities (or any such Global Note) or
Coupons.
Unless
otherwise specified as contemplated by Section 3.01, Securities in bearer form
(other than in global form) shall have Coupons attached.
The
definitive Securities and Coupons, if any, of each series shall be printed,
typed, lithographed or engraved or produced by any combination of these methods,
may or may not be produced on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, as conclusively evidenced by their execution of such Securities and
Coupons.
Section
2.02. Form of Trustee’s Certificate of
Authentication.
The form
of the Trustee’s certificate of authentication to be borne by the Securities
shall be substantially as follows:
Trustee’s
Certificate of Authentication
This is
one of the series of Debt Securities issued under the within mentioned
Indenture.
|
The
Bank of New York Mellon Trust Company, N.A.,
|
|
as
Trustee
|
|
|
|
|
By:
|
|
|
|
|
Section
2.03. Securities in Global Form.
If any
Security of a series is issuable in global form (a “GLOBAL NOTE”), such Global
Note may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Global
Note to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee and in
such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section
1.02.
Global
Notes may be issued in either registered or bearer form and in either temporary
or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE
THREE
THE
SECURITIES
Section
3.01. 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 3.03)
set forth in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series:
(a) the
title of the Securities of the series (which shall distinguish the Securities of
such series from all other series of Securities);
(b) the
limit, if any, 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 transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Sections 3.04, 3.05,
3.06, 11.07 or 13.07);
(c) the
date or dates on which or periods during which the Securities of the series may
be issued, and the date or dates (or the method of determination thereof) on
which the principal of (and premium, if any, on) the Securities of such series
are or may be payable (which, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company from time to time and
set forth in the Securities of the series issued from time to
time);
(d) the
rate or rates (or the method of determination thereof) at which the Securities
of the series shall bear interest, if any, and the dates from which such
interest shall accrue (which, in either case or both, if so provided in such
Board Resolution or supplemental indenture, may be determined by the Company
from time to time and set forth in the Securities of the series issued from time
to time); and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), and, in the case of Registered
Securities, the Regular Record Dates for the interest payable on such Interest
Payment Dates and, in the case of Floating Rate Securities, the notice, if any,
to Holders regarding the determination of interest and the manner of giving such
notice;
(e) the
place or places, if any, in addition to or instead of the Corporate Trust Office
of the Trustee (in the case of Registered Securities) or the principal London
office of the Trustee (in the case of Bearer Securities), where the principal of
(and premium, if any) and interest on Securities of the series shall be payable;
the extent to which, or the manner in which, any interest payable on any Global
Note on an Interest Payment Date will be paid, if other than in the manner
provided in Section 3.07; the extent, if any, to which the provisions of the
last sentence of Section 12.01 shall apply to the Securities of the Series; and
the manner in which any principal of, or premium, if any, on, any Global Note
will be paid, if other than as set forth elsewhere herein;
(f) the
obligation, if any, of the Company to redeem, repay or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or at the option
of the Holder and the period or periods within which or the dates on which, the
prices at which and the terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(g) the
period or periods within which, or the date or dates on which, the price or
prices at which, and the terms and conditions upon which Securities of the
series may be redeemed, if any, in whole or in part, at the option of the
Company or otherwise;
(h) if
the coin or Currency in which the Securities shall be issuable is in Dollars,
the denominations of such Securities if other than denominations of $1,000 and
any integral multiple thereof (except as provided in Section
3.04);
(i) whether
the Securities of the series are to be issued as Discount Securities and the
amount of discount with which such Securities may be issued and, if other than
the principal amount thereof, the portion of the principal amount of Securities
of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02;
(j) whether
the provisions set forth in Article Fifteen shall apply, and, if applicable, any
additional and/or alternative provisions for the defeasance of Securities of the
series;
(k) whether
Securities of the series are to be issued as Registered Securities or Bearer
Securities or both, and, if Bearer Securities are issued, whether Coupons will
be attached thereto, whether Bearer Securities of the series may be exchanged
for Registered Securities of the series, as provided in Section 3.05(b) or
otherwise and the circumstances under which and the place or places at which any
such exchanges, if permitted, may be made;
(l) whether
provisions for payment of additional amounts or tax redemptions shall apply and,
if such provisions shall apply, such provisions; and, if Bearer Securities of
the series are to be issued, whether a procedure other than that set forth in
Section 3.04(b) shall apply and, if so, such other procedure, and if the
procedure set forth in Section 3.04(b) shall apply, the forms of certifications
to be delivered under such procedure;
(m) if
other than Dollars, the Foreign Currency or Currencies in which Securities of
the series shall be denominated or in which payment of the principal of (and/or
premium, if any) and/or interest on the Securities of the series may be made,
and the particular provisions applicable thereto and, if applicable, the amount
of Securities of the series which entitles the Holder of a Security of the
series or its proxy to one vote for purposes of Section 9.05;
(n) if
the principal of (and premium, if any) or interest on Securities of the series
are to be payable, at the election of the Company or a Holder thereof, in a
Currency other than that in which the Securities are denominated or payable
without such election, in addition to or in lieu of the provisions of Section
3.10, the period or periods within which and the terms and conditions upon
which, such election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Securities are denominated or payable without such election and the Currency or
Currencies in which the Securities are to be paid if such election is
made;
(o) the
date as of which any Securities of the series shall be dated, if other than as
set forth in Section 3.03;
(p) if
the amount of payments of principal of (and premium, if any) or interest on the
Securities of the series may be determined with reference to an index,
including, but not limited to, an index based on a Currency or Currencies other
than that in which the Securities are denominated or payable, or any other type
of index, the manner in which such amounts shall be determined;
(q) if
the Securities of the series are denominated or payable in a Foreign Currency,
any other terms concerning the payment of principal of (and premium, if any) or
any interest on such Securities (including the Currency or Currencies of payment
thereof);
(r) the
designation of the original Currency Determination Agent, if any;
(s) the
applicable Overdue Rate, if any;
(t) if
the Securities of the series do not bear interest payable on semi-annual
Interest Payment Dates, the applicable dates for purposes of Section
7.01;
(u) any
addition to, or modification or deletion of, any Events of Default or covenants
(including, without limitation, any of the covenants set forth in Article
Twelve) provided for with respect to Securities of the series;
(v) if
Bearer Securities of the series are to be issued, (x) whether interest in
respect of any portion of a temporary Security in global form (representing all
of the Outstanding Bearer Securities of the series) payable in respect of any
Interest Payment Date prior to the exchange of such temporary Security for
definitive Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Security held for its account and,
in such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a clearing
organization will be credited to the Persons entitled to interest payable on
such Interest Payment Date, and (y) the terms upon which interests in such
temporary Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Securities of the series and the terms upon which
interests in a permanent Global Note, if any, may be exchanged for definitive
Securities of the series;
(w) whether
the Securities of the series shall be issued in whole or in part in the form of
one or more Global Notes and, in such case, the U.S. Depositary or any Common
Depositary for such Global Note or Notes; and if the Securities of the series
are issuable only as Registered Securities, (A) the manner in which and the
circumstances under which Global Notes representing Securities of the series may
be exchanged for Registered Securities in definitive form, if other than, or in
addition to, the manner and circumstances specified in Section 3.04(c), and (B)
any other provisions that may be necessary or desirable to effect compliance
with the rules, regulations, practices and policies of the U.S. Depositary from
time to time in effect, which provisions may or may not be consistent with
Section 3.04 (c);
(x) if
the Securities of such series may be converted into or exchanged for other
securities of the Company or any other Persons, the terms and conditions
pursuant to which the Securities of such series may be converted or
exchanged;
(y) if
the principal of or premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder
thereof, in securities or other property, the type and amount of such securities
or other property, or the method by which such amount shall be determined, and
the periods within which, and the terms and conditions upon which, such election
may be made;
(z) any
amendments or modifications to the subordination provisions set forth in Article
Sixteen;
(aa) if
the Securities and/or Coupons of the series are to be issued upon exercise of
warrants, the terms and conditions relating to such issuance and such warrants;
and
(bb) any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture).
All
Securities of any one series shall be substantially identical except as to
denomination, rate or rates of interest (or the method by which such rate or
rates are to be determined), Stated Maturity and the date from which interest,
if any, shall accrue, and except as may otherwise be provided in or pursuant to
such Board Resolution and (subject to Section 3.03) set forth in such Officers’
Certificate, or in any such indenture supplemental hereto. The terms
of any Securities may be determined from time to time by the Company, if so
provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time, and unless
otherwise provided, a series may be reopened for issuance of additional
Securities of such series.
If any of
the terms of a series of Securities is established in or pursuant to a Board
Resolution, a copy of such Board Resolution 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 Officers’ Certificate setting forth the terms of
the series.
Section
3.02. Denominations.
In the
absence of any specification pursuant to Section 3.01 with respect to the
Securities of any series, the Securities of such series shall be issuable only
as Registered Securities in denominations of $1,000 and any integral multiple
thereof and shall be payable only in Dollars.
Section
3.03. Execution, Authentication, Delivery and
Dating.
The
Securities and the Coupons, if any, of any series shall be executed on behalf of
the Company by its Chairman, the Chief Executive Officer, its President, one of
its Corporate or Senior Vice Presidents or its Treasurer, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any
of these officers may be manual or facsimile.
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 and Coupons
or did not hold such offices at the date of such Securities and
Coupons.
At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities, with appropriate Coupons, if any, of any
series, executed by the Company, to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities and
Coupons, and the Trustee in accordance with the Company Order shall authenticate
and deliver such Securities and Coupons; provided, however, that, in connection
with its sale during the “restricted period” (as defined in Section 1.163-5(c)
(2) (i) (D) (7) of the United States Treasury Regulations), 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 Note in
bearer form) may be delivered outside the United States in connection with its
original issuance only if the Person entitled to receive such Bearer Security
shall have furnished to the Euroclear Operator or to Clearstream a certificate
substantially in the form set forth in Exhibit A to this
Indenture.
If all
the Securities of any one series are not to be issued at one time and if a Board
Resolution, Officers’ Certificate or supplemental indenture relating to such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities and the determination of the
terms of particular Securities of such series (including, without limitation,
the interest rate or rates (or the method by which such rate or rates are to be
determined), if any, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue).
If any
Security shall be represented by a permanent Global Note, then, for purposes of
this Section and Section 3.04, the notation of a beneficial owner’s interest
upon original issuance of such Security or upon exchange of a portion of a
temporary Global Note shall be deemed to be delivery in connection with the
original issuance of such beneficial owner’s interest in such permanent Global
Note. Except as permitted by Section 3.06 or 3.07, the Trustee shall
not authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and cancelled.
The
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, prior to the authentication and delivery of the
Securities and Coupons of such series, (i) the supplemental indenture or the
Board Resolution and Officers’ Certificate by or pursuant to which the form and
terms of such Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(a) all
instruments furnished by the Company to the Trustee in connection with the
authentication and delivery of such Securities and Coupons conform to the
requirements of this Indenture and constitute sufficient authority hereunder for
the Trustee to authenticate and deliver such Securities and
Coupons;
(b) the
forms and terms of such Securities and Coupons have been established in
conformity with the provisions of this Indenture;
(c) in
the event that the forms or terms of such Securities and Coupons have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture has been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution and delivery
by the Trustee, is a valid and binding obligation enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(d) the
execution and delivery of such Securities and Coupons have been duly authorized
by all necessary corporate action of the Company and such Securities and Coupons
have been duly executed by the Company and, assuming due authentication by the
Trustee and delivery by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms, entitled to the
benefit of the Indenture, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject to such
other exceptions as counsel shall request and as to which the Trustee shall not
reasonably object; and
(e) the
amount of Securities Outstanding of such series, together with the amount of
such Securities, does not exceed any limit established under the terms of this
Indenture on the amount of Securities of such series that may be authenticated
and delivered.
The
Trustee shall not be required to authenticate such Securities and Coupons if the
issuance of such Securities and Coupons pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this
Indenture in a manner which is not reasonably acceptable to the
Trustee.
Each
Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary or
permanent or other definitive Bearer Security in global form) shall be dated as
of the date of original issuance of the first Security of such series to be
issued, except as otherwise provided pursuant to Section 3.01 with respect to
the Bearer Securities of any series.
No
Security 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 one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. 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 3.08 together with a written
statement (which need not comply with Section 1.02) 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
3.04. Temporary Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities; Global Notes Representing
Registered Securities.
(a) Pending
the preparation of definitive Registered Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Registered Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination for
Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every
such temporary Registered Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case
of any series issuable as Bearer Securities, such temporary Securities may be in
global form, representing such of the Outstanding Securities of such series as
shall be specified therein.
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 such 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, of a like Stated Maturity and with like terms and
provisions, upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for such series, without
charge to the Holder, except as provided in Section 3.05 in connection with a
transfer. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured Coupons), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and of a like Stated Maturity and like terms and
provisions; 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 (including a permanent Bearer
Security in global form) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section
3.03. Until so exchanged, the temporary Registered Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Registered Securities of such series.
(b) Unless
otherwise specified pursuant to Section 3.01, all Bearer Securities of a series
shall be initially issued in the form of a single temporary Bearer Security in
global form (a “TEMPORARY GLOBAL NOTE”). The Company shall execute,
and upon Company Order the Trustee shall authenticate, any temporary Global Note
and any permanent Bearer Security in global form (as described below, a
“PERMANENT GLOBAL NOTE”) upon the same conditions and in substantially the same
manner, and with the same effect, as definitive Bearer Securities, and the
temporary or permanent Global Note, as the case may be, shall, unless otherwise
specified therein, be delivered by the Trustee to the London office of a
depositary or common depositary (the “COMMON DEPOSITARY”), for the benefit of
the Euroclear Operator or Clearstream, as the case may be, for credit to the
account of the Company (in the case of sales of Bearer Securities by the Company
directly to investors) or the managing underwriter (in the case of sales of
Bearer Securities by the Company to underwriters) or such other accounts as the
Company or the managing underwriter, respectively, may direct.
On or
after the date specified in or determined pursuant to the terms of any temporary
Global Note which (subject to any applicable laws and regulations) shall be at
least 40 days after the issue date of a temporary Global Note (the “EXCHANGE
DATE”), the Securities represented by such temporary Global Note may be
exchanged for definitive Securities (subject to the second succeeding paragraph)
or Securities to be represented thereafter by one or more permanent Global Notes
in definitive form without interest coupons. On or after the Exchange
Date such temporary Global Note shall be surrendered by the Common Depositary to
the Trustee, as the Company’s agent for such purpose, at its principal office in
London (or at such other place specified outside the United States pursuant to
Section 3.01) and following such surrender, the Trustee shall (1) endorse the
temporary Global Note to reflect the reduction of its principal amount by an
equal aggregate principal amount of such Security, (2) endorse the applicable
permanent Global Note, if any, to reflect the initial amount, or an increase in
the amount of Securities represented thereby, (3) manually authenticate such
definitive Securities (including any permanent Global Note), (4) deliver such
definitive Securities to the Holder thereof or, if such definitive Security is a
permanent Global Note, deliver such permanent Global Note to the Common
Depositary to be held outside the United States for the accounts of the
Euroclear Operator or Clearstream, as the case may be, for credit to the
respective accounts at Euroclear Operator or Clearstream, as the case may be,
designated by or on behalf of the beneficial owners of such Securities (or to
such other accounts as they may direct) and (5) redeliver such temporary Global
Note to the Common Depositary, unless such temporary Global Note shall have been
cancelled in accordance with Section 3.08 hereof; provided, however, that,
unless otherwise specified in such temporary Global Note, upon such presentation
by the Common Depositary, such temporary Global Note shall be accompanied by a
certificate dated the Exchange Date or a subsequent date (or, in the event that
an Interest Payment Date occurs prior to the Exchange Date, dated such Interest
Payment Date) and signed by the Euroclear Operator, as to the portion of such
temporary Global Note held for its account then to be exchanged for definitive
Securities (including any permanent Global Note), and a certificate dated the
Exchange Date or a subsequent date (or, in the event that an Interest Payment
Date occurs prior to the Exchange Date, dated such Interest Payment Date) and
signed by Clearstream, as to the portion of such temporary Global Note held for
its account then to be exchanged for definitive Securities (including any
permanent Global Note), each substantially in the form set forth in Exhibit B to
this Indenture. Each certificate substantially in the form of Exhibit
B hereto of the Euroclear Operator or Clearstream, as the case may be, shall be
based on certificates of the account holders listed in the records of the
Euroclear Operator or Clearstream, as the case may be, as being entitled to all
or any portion of the applicable temporary Global Note. An account
holder of the Euroclear Operator or Clearstream, as the case may be, desiring to
effect the exchange of an interest in a temporary Global Note for an interest in
definitive Securities (including any permanent Global Note) shall instruct the
Euroclear Operator or Clearstream, as the case may be, to request such exchange
on its behalf and shall deliver to the Euroclear Operator or Clearstream, as the
case may be, a certificate substantially in the form of Exhibit A hereto and
dated no earlier than 10 days prior to the Exchange Date (or, in the event that
an Interest Payment Date occurs prior to the Exchange Date, no earlier than 10
days prior to such Interest Payment Date). Until so exchanged,
temporary Global Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities (including any permanent Global
Note) of the same series authenticated and delivered hereunder, except as to
payment of interest, if any.
The
delivery to the Trustee by the Euroclear Operator or Clearstream of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euroclear Operator
or Clearstream, as the case may be, pursuant to the terms of this
Indenture.
On or
prior to the Exchange Date, the Company shall deliver to the Trustee definitive
Securities in an aggregate principal amount equal to the principal amount of
such temporary Global Note, executed by the Company. At any time, on
or after the Exchange Date, upon 30 days’ notice to the Trustee by the Euroclear
Operator or Clearstream, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Security represented by a temporary Global
Note or a permanent Global Note, as the case may be, may be exchanged, in whole
or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary Global Note or such permanent Global Note, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of a like Stated Maturity and with like terms and conditions,
as the portion of such temporary Global Note or such permanent Global Note to be
exchanged, which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as contemplated by Section 3.01,
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 definitive Bearer Securities shall be delivered in
exchange for a portion of the temporary Global Note or the permanent Global Note
only in compliance with the requirements of the second preceding
paragraph. On or prior to the thirtieth day following receipt by the
Trustee of such notice with respect to a Security, or, if such day is not a
Business Day, the next succeeding Business Day, the temporary Global Note or the
permanent Global Note, as the case may be, 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 definitive Securities
without charge following such surrender, upon the request of the Euroclear
Operator or Clearstream, as the case may be, and the Trustee shall (1) endorse
the applicable temporary Global Note or the permanent Global Note to reflect the
reduction of its principal amount by the aggregate principal amount of such
Security, (2) cause the terms of such Security and Coupons, if any, to be
entered on a definitive Security, (3) manually authenticate such definitive
Security, and (4) if a Bearer Security is to be delivered, deliver such
definitive Security outside the United States to the Euroclear Operator or
Clearstream, as the case may be, for or on behalf of the beneficial owner
thereof, in exchange for a portion of such temporary Global Note or the
permanent Global Note.
Unless
otherwise specified in such temporary Global Note or the permanent Global Note,
any such exchange shall be made free of charge to the beneficial owners of such
temporary Global Note or the permanent Global Note, 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 the Euroclear Operator
or Clearstream. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary Global Note or the permanent Global
Note shall be delivered only outside the United
States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until
exchanged in full as hereinabove provided, any temporary Global Note or the
permanent Global Note shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such temporary Global Note
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to the Euroclear Operator or
Clearstream on such Interest Payment Date upon delivery by the Eurodear Operator
or Clearstream to the Trustee of a certificate or certificates substantially in
the form set forth in Exhibit B to this Indenture, 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 Note on such
Interest Payment Date and who have each delivered to the Euroclear Operator or
Clearstream, as the case may be, a certificate substantially in the form set
forth in Exhibit A to this Indenture.
Any
definitive Bearer Security authenticated and delivered by the Trustee in
exchange for a portion of a temporary Global Note or the permanent Global Note
shall not bear a coupon for any interest which shall theretofore have been duly
paid by the Trustee to the Euroclear Operator or Clearstream, or by the Company
to the Trustee in accordance with the provisions of this Section
3.04.
With
respect to Exhibits A and B to this Indenture, the Company may, in its
discretion and if required or desirable under applicable law, substitute one or
more other forms of such exhibits for such exhibits, eliminate the requirement
that any or all certificates be provided, or change the time that any
certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with a Company Request and such form
or forms, elimination or change is reasonably acceptable to the
Trustee.
(c) If
the Company shall establish pursuant to Section 3.01 that the Registered
Securities of a series are to be issued in whole or in part in the form of one
or more Global Notes, then the Company shall execute and the Trustee shall, in
accordance with Section 3.03 and the Company Order with respect to such series,
authenticate and deliver one or more Global Notes in temporary or permanent form
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by one or more Global Notes, and (ii) shall be registered in the
name of the U.S. Depositary for such Global Note or Notes or the nominee of such
depositary.
Notwithstanding
any other provision of this Section or Section 3.05, unless and until it is
exchanged in whole or in part for Registered Securities in definitive form, a
Global Note representing all or a portion of the Registered Securities of a
series may not be transferred except as a whole by the U.S. Depositary for such
series to a nominee of such depositary or by a nominee of such depositary to
such depositary or another nominee of such depositary or by such depositary or
any such nominee to a successor U.S. Depositary for such series or a nominee of
such successor depositary.
If at any
time the U.S. Depositary for the Securities of a series notifies the Company
that it is unwilling or unable to continue as U.S. Depositary for the Securities
of such series or if at any time the U.S. Depositary for Securities of a series
shall no longer be a clearing agency registered and in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor U.S. Depositary with respect
to the Securities of such series. If a successor U.S. Depositary for
the Securities of such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Registered Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for such Global Note
or Notes.
The
Company may at any time and in its sole discretion determine that the Registered
Securities of any series issued in the form of one or more Global Notes shall no
longer be represented by such Global Note or Notes. In such event,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Registered Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for such Global Note
or Notes.
If the
Registered Securities of any series shall have been issued in the form of one or
more Global Notes and if an Event of Default with respect to the Securities of
such series shall have occurred and be continuing, the Company will promptly
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will authenticate and
deliver, Registered Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such series in exchange for such Global Note or
Notes.
If
specified by the Company pursuant to Section 3.01 with respect to Registered
Securities of a series, the U.S. Depositary for such series of Registered
Securities may surrender a Global Note for such series of Securities in exchange
in whole or in part for Registered Securities of such series in definitive form
on such terms as are acceptable to the Company and such
depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(a) to
each Person specified by the U.S. Depositary a new Registered Security or
Securities of the same series, of any authorized denomination as requested by
such Person in an aggregate principal amount equal to and in exchange for such
Person’s beneficial interest in the Global Note; and
(b) to
the U.S. Depositary a new Global Note in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Note and the
aggregate principal amount of Registered Securities delivered to Holders
thereof.
Upon the
exchange of a Global Note for Registered Securities in definitive form, such
Global Note shall be cancelled by the Trustee. Securities issued in
exchange for a Global Note pursuant to this subsection (c) shall be registered
in such names and in such authorized denominations as the U.S. Depositary for
such Global Note, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
Section
3.05. Registration, Transfer and
Exchange.
(a) The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the registers maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein 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 of transfers and exchanges of Registered
Securities. The Trustee is hereby appointed “SECURITY REGISTRAR” for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars.
Upon
surrender for registration of transfer of any Registered Security of any series
at the office or agency of the Company maintained for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee, one or more new Registered Securities of the same
series of like aggregate principal amount of such denominations as are
authorized for Registered Securities of such series and of a like Stated
Maturity and with like terms and conditions.
Except as
otherwise provided in Section 3.04 and this Section 3.05, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series of like aggregate principal amount and
of a like Stated Maturity and with like terms and conditions, upon surrender of
the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive.
(b) If
and to the extent specified pursuant to Section 3.01, the provisions of this
Section 3.05(b) shall be applicable to Securities of any series which are Bearer
Securities. At the option of the Holder thereof, to the extent
permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be
surrendered with all unmatured Coupons and any matured Coupons in default
attached thereto. 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
Bearer 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 12.03, 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 of
a like Stated Maturity and with like terms and conditions after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), 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. The Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Security or Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding
the foregoing, the exchange of Bearer Securities for Registered Securities will
be subject to the provisions of United States income tax laws and regulations
applicable to Securities in effect at the time of such exchange.
(c) Except
as otherwise specified pursuant to Section 3.01, in no event may Registered
Securities, including Registered Securities received in exchange for Bearer
Securities, be exchanged for Bearer Securities.
(d) All
Securities issued upon any transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered for such transfer
or exchange.
Every
Registered Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No
service charge will be made for any transfer or exchange of Securities except as
provided in Section 3.04(b) or 3.06. 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, transfer or exchange of Securities,
other than those expressly provided in this Indenture to be made at the
Company’s own expense or without expense or without charge to the
Holders.
The
Company shall not be required (i) to register, transfer or exchange Securities
of any series during a period beginning at the opening of business 15 days
before the day of the transmission of a notice of redemption of Securities of
such series selected for redemption under Section 13.03 and ending at the close
of business on the day of such transmission, or (ii) to register, transfer or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section
3.06. Mutilated, Destroyed, Lost and Stolen
Securities.
If (i)
any mutilated Security or any mutilated Coupon with the Coupon Security to which
it appertains (and all unmatured Coupons attached thereto) is surrendered to the
Trustee at its Corporate Trust Office (in the case of Registered Securities) or
at its principal London office (in the case of Bearer Securities), or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security or any Coupon, and there is delivered
to the Company and the Trustee such security or indemnity as may be required by
them to save each of them and any Paying Agent harmless, and neither the Company
nor the Trustee receives notice that such Security or Coupon has been acquired
by a bona fide purchaser, then the Company shall execute and upon Company
Request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Security or in exchange for the
Coupon Security to which such mutilated, destroyed, lost or stolen Coupon
appertained, a new Security of the same series of like Stated Maturity and with
like terms and conditions and like principal amount, bearing a number not
contemporaneously Outstanding, and, in the case of a Coupon Security, with such
Coupons attached thereto that neither gain nor loss in interest shall result
from such exchange or substitution.
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 the amount due on such Security or Coupon in
accordance with its terms; provided, however, that principal of (and premium, if
any) and any interest on Bearer Securities shall, except as otherwise provided
in Section 12.03, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 3.01 or
except as otherwise provided in this Section 3.06, 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 the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in respect thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new
Security or Coupon of any series issued pursuant to this Section shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
Coupons of that series duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons.
Section
3.07. Payment of Interest; Interest Rights
Preserved.
(a) 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 such Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
notwithstanding the cancellation of such Registered Security upon any transfer
or exchange subsequent to the Regular Record Date. Unless otherwise
specified as contemplated by Section 3.01 with respect to the Securities of any
series, payment of interest on Registered Securities shall be made at the place
or places specified pursuant to Section 3.01 or, at the option of the Company,
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or, if provided pursuant to Section 3.01,
by wire transfer to an account designated by the Registered Holder.
(b) Interest
on any Coupon Security which is payable and is punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Holder of the Coupon which
has matured on such Interest Payment Date upon surrender of such Coupon on such
Interest Payment Date at the principal London office of the Trustee or at such
other Place of Payment outside the United States specified pursuant to Section
3.01.
Interest
on any Bearer Security (other than a Coupon Security) which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Holder of the Bearer Security upon presentation of such Bearer Security
and notation thereon on such Interest Payment Date at the principal London
office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.01.
Unless
otherwise specified pursuant to Section 3.01, at the direction of the Holder of
any Bearer Security or Coupon payable in Dollars, payment on such Bearer
Security or Coupon will be made by check drawn on a bank in The City of New York
or, if agreeable to the Trustee, by wire transfer to a Dollar account maintained
by such Holder outside the United States. If such payment at the
offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section
3.01, at the direction of the Holder of any Bearer Security or Coupon payable in
a Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United
States. Except as provided in this paragraph, no payment on any
Bearer Security or Coupon will be made by mail to an address in the United
States or by wire transfer to an account in the United States.
(c) Any
interest on any Security which is payable but is not punctually paid or duly
provided for on any interest Payment Date (herein called “DEFAULTED INTEREST”)
shall, if such Security is a Registered Security, forthwith cease to be payable
to the Registered Holder on the relevant Regular Record Date by virtue of his
having been such Registered 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:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency unit in which
the Securities of such series are payable (except as otherwise specified
pursuant to Sections 3.01 or 3.10) equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which date shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the Holders
of such Registered Securities at their addresses as they appear in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Registered Securities
(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).
(ii) The
Company may make payment of any Defaulted Interest on Registered Securities in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Registered Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(d) Any
Defaulted Interest payable in respect of Bearer Securities of any series shall
be payable pursuant to such procedures as may be satisfactory to the Trustee in
such manner that there is no discrimination between the Holders of Registered
Securities (if any) and Bearer Securities of such series, and notice of the
payment date therefor shall be given by the Trustee, in the name and at the
expense of the Company, in the manner provided in Section 1.05 not more than 25
days and not less than 20 days prior to the date of the proposed
payment.
(e) Subject
to the foregoing provisions of this Section, each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section
3.08. Cancellation.
Unless
otherwise specified pursuant to Section 3.01 for Securities of any series, all
Securities surrendered for payment, redemption, transfer, exchange or credit
against any sinking fund and all Coupons surrendered for payment or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Registered Securities and matured Coupons so delivered
shall be promptly cancelled by the Trustee. All Bearer Securities and
unmatured Coupons so delivered shall be held by the Trustee and, upon
instruction by the Company Order, shall be cancelled or held for
reissuance. Bearer Securities and unmatured Coupons held for
reissuance may be reissued only in exchange for Bearer Securities of the same
series and of like Stated Maturity and with like terms and conditions pursuant
to Section 3.05 or in replacement of mutilated, lost, stolen or destroyed Bearer
Securities of the same series and of like Stated Maturity and with like terms
and conditions or the related Coupons pursuant to Section 3.06. All
Bearer Securities and unmatured Coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Securities. The Company may at
any time deliver to the Trustee for cancellation any Securities or Coupons
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued, and all
Securities or Coupons so delivered shall be promptly cancelled by the
Trustee. No Securities or Coupons shall be authenticated in lieu of
or in exchange for any Securities or Coupons cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities and Coupons held by the Trustee shall be delivered to the
Company upon Company Request. The acquisition of any Securities or
Coupons by the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Securities or Coupons are
surrendered to the Trustee for cancellation. In the case of any
temporary Global Note which shall be destroyed if the entire aggregate principal
amount of the Securities represented thereby has been exchanged, the certificate
of destruction shall state that all certificates required pursuant to Section
3.04 hereof and substantially in the form of Exhibit B hereto, to be given by
the Euroclear Operator or Clearstream, have been duly presented to the Trustee
by the Euroclear Operator or Clearstream, as the case may
be. Permanent Global Notes shall not be destroyed until exchanged in
full for definitive Securities or until payment thereon is made in
full.
Section
3.09. Computation of Interest.
Except as
otherwise specified pursuant to Section 3.01 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.
Section
3.10. Currency of Payments in Respect of
Securities.
(a) Except
as otherwise specified pursuant to Section 3.01 for Bearer Securities of any
series, payment of the principal of (and premium, if any) and interest on Bearer
Securities of such series denominated in any Currency will be made in such
Currency.
(b) With
respect to Registered Securities of any series not permitting the election
provided for in paragraph (c) below or the Holders of which have not made the
election provided for in paragraph (c) below, except as provided in paragraph
(e) below, payment of the principal of (and premium, if any) and any interest on
any Registered Security of such series will be made in the Currency in which
such Registered Security is payable.
(c) It
may be provided pursuant to Section 3.01 with respect to the Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (e) and (f) below, to receive payments of principal of (and premium,
if any) and any interest on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election, to be substantially in the form of Exhibit C, not later than the close
of business on the Election Date immediately preceding the applicable payment
date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or any transferee
of such Holder until changed by such Holder or such transferee by written notice
to the Trustee (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change or
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or notice of redemption has been given by the Company pursuant to Article
Thirteen). Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee by the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in the relevant Currency as provided in paragraph (b) of this Section
3.10.
(d) If
the election referred to in paragraph (c) above has been provided for pursuant
to Section 3.01, then not later than the fourth Business Day after the Election
Date for each payment date, the Trustee will deliver to the Company a written
notice specifying, in the Currency in which each series of the Registered
Securities is payable, the respective aggregate amounts of principal of (and
premium, if any) and any interest on the Registered Securities to be paid on
such payment date, specifying the amounts so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in
paragraph (c) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, on the second Business Day
preceding each payment date, the Company will deliver to the Trustee an Exchange
Rate Officer’s Certificate in respect of the Currency payments to be made on
such payment date. The Currency amount receivable by Holders of
Registered Securities who have elected payment in a Currency as provided in
paragraph (c) above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business Day (the
“VALUATION DATE”) immediately preceding each payment date.
(e) If
a Conversion Event occurs with respect to a Foreign Currency or any other
Currency unit in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (c) above, then
with respect to each date for the payment of principal of (and premium, if any)
and any interest on the applicable Securities denominated or payable in such
Foreign Currency or such other Currency unit occurring after the last date on
which such Foreign Currency or such other Currency unit was used (the
“CONVERSION DATE”), the Dollar shall be the Currency of payment for use on each
such payment date. The Dollar amount to be paid by the Company to the
Trustee and by the Trustee or any Paying Agent to the Holders of such Securities
with respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of a Currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Currency Determination Agent,
if any, or, if there shall not be a Currency Determination Agent, then by the
Trustee, in the manner provided in paragraph (g) or (h) below.
(f) If
the Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (c) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 3.10.
(g) The
“DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY” shall be determined by the Currency
Determination Agent, if any, or, if there shall not be a Currency Determination
Agent, then by the Trustee, and shall be obtained for each subsequent payment
date by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Conversion Date.
(h) The
“DOLLAR EQUIVALENT OF THE CURRENCY UNIT” shall be determined by the Currency
Determination Agent, if any, or, if there shall not be a Currency Determination
Agent, then by the Trustee, and subject to the provisions of paragraph (i)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each
payment.
(i)
For purposes of this Section 3.10 the following terms shall have the
following meanings:
A
“COMPONENT CURRENCY” shall mean any Currency which, on the Conversion Date, was
a component Currency of the relevant Currency unit.
A
“SPECIFIED AMOUNT” of a Component Currency shall mean the number of units of
such Component Currency or fractions thereof which were represented in the
relevant Currency unit on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a single
Currency, the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in such
single Currency, and such amount shall thereafter be a Specified Amount and such
single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or more
Currencies, the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more Currencies with appropriate Dollar equivalents at
the Market Exchange Rate on the date of such replacement equal to the Dollar
equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate on such date, and such amounts shall thereafter be
Specified Amounts and such Currencies shall thereafter be Component
Currencies. If after the Conversion Date of the relevant Currency
unit, a Conversion Event (other than any event referred to above in this
definition of “Specified Amount”) occurs with respect to any Component Currency
of such Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
“ELECTION
DATE” shall mean the record date with respect to any payment date, and with
respect to the Maturity shall mean the record date (if within 16 or fewer days
prior to the Maturity) immediately preceding the Maturity, and with respect to
any series of Securities whose record date immediately preceding the Maturity is
more than 16 days prior to the Maturity or any series of Securities for which no
record dates are provided with respect to interest payments, shall mean the date
which is 16 days prior to the Maturity.
(j) All
decisions and determinations of the Trustee or the Currency Determination Agent,
if any, regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit and the Market Exchange Rate shall be in its
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Company and all Holders of the
Securities denominated or payable in the relevant Currency. In the
event of a Conversion Event with respect to a Foreign Currency, the Company,
after learning thereof, will immediately give written notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.05 to the Holders) specifying the Conversion
Date. In the event of a Conversion Event with respect to any Currency
unit in which Securities are denominated or payable, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give written notice in the manner provided in Section
1.05 to the Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified
and protected in relying and acting upon information received by it from the
Company and the Currency Determination Agent, if any, and shall not otherwise
have any duty or obligation to determine such information
independently.
(k) For
purposes of any provision of the Indenture where the Holders of Outstanding
Securities may perform an Act which requires that a specified percentage of the
Outstanding Securities of all series perform such Act and for purposes of any
decision or determination by the Trustee of amounts due and unpaid for the
principal (and premium, if any) and interest on the Securities of all series in
respect of which moneys are to be disbursed ratably, the principal of (and
premium, if any) and interest on the Outstanding Securities denominated in a
Foreign Currency will be the amount in Dollars based upon the Market Exchange
Rate for Securities of such series, as of the date for determining whether the
Holders entitled to perform such Act have performed it, or as of the date of
such decision or determination by the Trustee, as the case may
be.
Section
3.11. Judgments.
If for
the purpose of obtaining a judgment in any court with respect to any obligation
of the Company hereunder or under any Security, it shall become necessary to
convert into any other Currency any amount in the Currency due hereunder or
under such Security, then such conversion shall be made at the Market Exchange
Rate as in effect on the date the Company shall make payment to any Person in
satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and there
shall occur a change between such Market Exchange Rate and the Market Exchange
Rate as in effect on the date of payment, the Company agrees to pay such
additional amounts (if any) as may be necessary to ensure that the amount paid
is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Security. Any amount due from
the Company under this Section 3.11 shall be due as a separate debt and is not
to be affected by or merged into any judgment being obtained for any other sums
due hereunder or in respect of any Security. In no event, however,
shall the Company be required to pay more in the Currency or Currency unit due
hereunder or under such Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Security so that in any event the Company’s obligations hereunder or under
such Security will be effectively maintained as obligations in such Currency,
and the Company shall be entitled to withhold (or be reimbursed for, as the case
may be) any excess of the amount actually realized upon any such conversion over
the amount due and payable on the date of payment or distribution.
Section
3.12. Exchange Upon Default.
If
default is made in the payments referred to in Section 12.01, the Company hereby
undertakes that upon presentation and surrender of a permanent Global Note to
the Trustee (or to any other Person or at any other address as the Company may
designate in writing), on any Business Day on or after the maturity date thereof
the Company will issue and the Trustee will authenticate and deliver to the
bearer of such permanent Global Note duly executed and authenticated definitive
Securities with the same issue date and maturity date as set out in such
permanent Global Note.
ARTICLE
FOUR
SATISFACTION
AND DISCHARGE
Section
4.01. Satisfaction and Discharge of
Indenture.
This
Indenture, with respect to the Securities of any series (if all series issued
under this Indenture are not to be affected), shall upon Company Request, cease
to be of further effect (except as to any surviving rights of registration of
transfer or exchange of such Securities herein expressly provided for and rights
to receive payments of principal (and premium, if any) and interest on such
Securities) 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 and the Coupons, if any, of such series theretofore authenticated and
delivered (other than (i) Securities and Coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06, (ii) Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived under Section 3.05, (iii) Coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
13.06, and (iv) Securities and Coupons of such series 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 12.04) have been delivered to the Trustee for cancellation;
or
(B) all
Securities and the Coupons, if any, of such series 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 by the Trustee in the name, and at the
expense, of the Company,
and the
Company, in the case of (i), (ii) or (iii) of this subclause (B), has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose an amount in the Currency in which such Securities are
denominated (except as otherwise provided pursuant to Sections 3.01 or 3.10)
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest 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; provided, however, that in the event that a
petition for relief under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law is filed with respect to the Company within 91 days after such
deposit and the Trustee is required to return the deposited money to the
Company, the obligations of the Company under this Indenture with respect to
such Securities shall not be deemed terminated or discharged;
(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 with respect to such series
have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.07, the obligations of the Trustee to any
Authenticating Agent under Section 6.14, the obligations of the Company under
Section 12.01, and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 12.04, shall
survive. If, after the deposit referred to in Section 4.01 has been
made, (x) the Holder of a Security is entitled to, and does, elect pursuant to
Section 3.10(c), to receive payment in a Currency other than that in which the
deposit pursuant to Section 4.01 was made, or (y) if a Conversion Event occurs
with respect to the Currency in which the deposit was made or elected to be
received by the Holder pursuant to Section 3.10(c), then the indebtedness
represented by such Security shall be fully discharged to the extent that the
deposit made with respect to such Security shall be converted into the Currency
in which such payment is made.
Section
4.02. Application of Trust
Money.
Subject
to the provisions of the last paragraph of Section 12.04, all money deposited
with the Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and Coupons, if any, and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE
FIVE
REMEDIES
Section
5.01. Events of
Default.
“EVENT OF
DEFAULT” wherever used herein with respect to Securities of any series means 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 upon any Security or any payment with respect to
the Coupons, if any, of such series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default
in the payment of the principal of (and premium, if any, on) any Security of
such series at its Maturity; or
(3) default
in the making or satisfaction of any sinking fund payment or analogous
obligation, when and as due by the terms of any Security of such series;
or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
expressly has been included in this Indenture solely for the benefit of
Securities of a series other than such 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 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 a “Notice of Default”
hereunder; or
(5) default
(i) in the payment of any scheduled principal of or interest on any Indebtedness
of the Company or any Subsidiary of the Company (other than Securities of such
series), aggregating more than $20 million in principal amount, when due after
giving effect to any applicable grace period or (ii) in the performance of any
other term or provision of any Indebtedness of the Company or any Subsidiary of
the Company (other than Securities of such series) in excess of $20 million
principal amount that results in such Indebtedness 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 have been rescinded or annulled, or
such Indebtedness shall not have been discharged, within a period of 15 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 defaults and stating that such notice is a “Notice of
Default” hereunder; or
(6) the
entry against the Company or any Subsidiary of the Company of one or more
judgments, decrees or orders by a court having jurisdiction in the premises from
which no appeal may be or is taken for the payment of money, either individually
or in the aggregate, in excess of $20 million, and the continuance of such
judgment, decree or order unsatisfied and in effect for any period of 45
consecutive days after the amount thereof is due without a stay of execution and
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 entry and continuance of such judgment, decree or order and
stating that such notice is a “Notice of Default” hereunder; or
(7) any
case or proceeding shall be commenced against the Company seeking to have an
order for relief entered against it or to adjudicate it as bankrupt or insolvent
or seeking reorganization, liquidation, dissolution, winding-up, arrangement,
composition of its debts or other relief under any applicable bankruptcy,
insolvency, reorganization or other similar law of any jurisdiction, domestic or
foreign, now or hereafter existing, or a receiver, custodian, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property shall be appointed; and such case or
proceeding (A) results in the entry of an order for relief or similar order
against the Company, or (B) shall continue unstayed and in effect for a period
of 60 consecutive days; or
(8) the
commencement by the Company of a voluntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law of any
jurisdiction, domestic or foreign, now or hereafter existing, or the consent by
the Company to, or the application by the Company for, the entry of an order for
relief in respect of the Company in an involuntary case or proceeding under any
such law or the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of its creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(9) any
other Event of Default provided with respect to Securities of that series
pursuant to Section 3.01.
Section
5.02. Acceleration of
Maturity; Rescission and Annulment.
If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of such series may declare the principal amount (or, if any Securities of such
series are Discount Securities, such portion of the principal amount of such
Discount Securities as may be specified in the terms of such Discount
Securities) of all the Securities of such 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) shall become immediately due and payable. Upon payment of
such amount in the Currency in which such Securities are denominated (except as
otherwise provided pursuant to Sections 3.01 or 3.10), all obligations of the
Company in respect of the payment of principal of the Securities of such series
shall terminate. Any payment by the Company on the Securities
following any such acceleration will be subject to the subordination provisions
of Article Sixteen to the extent provided therein.
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
such 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 in the Currency in which
such Securities are denominated (except as otherwise provided pursuant to
Section 3.01 or 3.10) sufficient to pay:
(A) all
overdue installments of interest on all Securities or all overdue payments with
respect to any Coupons of such series,
(B) the
principal of (and premium, if any, on) any Securities of such series which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue
installments of interest on each Security of such series or upon overdue
payments on any Coupons of such series at the Overdue Rate, and
(D) (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; provided, however, that all sums payable under this clause (D)
shall be paid in Dollars;
and
(2) All
Events of Default with respect to Securities of such series, other than the
nonpayment of the principal of Securities of such series which has become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section
5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The
Company covenants that if:
(1) default
is made in the payment of any installment of interest on any Security or any
payment with respect to any Coupons when such interest or payment becomes due
and payable and such default continues for a period of 30 days,
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, or
(3) default
is made in the making or satisfaction of any sinking fund payment or analogous
obligation when and as due by the terms of the Securities of any
series,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or of such Coupons, the whole amount then due and
payable on such Securities or matured Coupons, for principal (and premium, if
any) and interest, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest upon the overdue principal (and premium,
if any) and upon overdue installments of interest, at the Overdue Rate; 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 amount forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against the
Company or any other obligor upon 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 in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities and Coupons of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section
5.04. 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 and Coupons, if any, of a particular series or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Securities shall then be due and
payable as therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to
file and prove a claim or claims for the whole amount of principal (or, if the
Securities of such series are Discount Securities, such portion of the principal
amount as may be due and payable with respect to such series pursuant to a
declaration in accordance with Section 5.02) (and premium, if any) and interest
owing and unpaid in respect of the Securities and Coupons of such series and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders of such Securities and Coupons allowed in such
judicial proceeding, and
(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, custodian, liquidator, sequestrator (or other
similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, 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 6.07.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or any Coupons of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section
5.05. Trustee May Enforce Claims Without Possession
of Securities.
All
rights of action and claims under this Indenture or the Securities and the
Coupons, if any, of any series may be prosecuted and enforced by the Trustee
without the possession of any of such 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 or Coupons in respect of which such judgment has been
recovered.
Section
5.06. Application of Money Collected.
Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (and premium, if any) or
interest, upon presentation of the Securities or Coupons of any series in
respect of which money has been collected and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
First: To
the payment of all amounts due the Trustee under Section 6.07.
Second:
Subject to Article Sixteen, to the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the Securities or Coupons
of such series, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities or Coupons for principal (and
premium, if any) and interest, respectively; and
Third:
The balance, if any, to the Person or Persons entitled thereto.
Section
5.07. Limitation on Suits.
No Holder
of any Security or Coupon of any series 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 such series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Securities
of such 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;
(3) such
Holder or Holders have offered to the Trustee reasonable indemnity 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 such 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 such Holders
or of the Holders of Outstanding Securities or Coupons of any other series, 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. For the protection and enforcement of the provisions of this
Section 5.07, each and every Holder of Securities or Coupons of any series and
the Trustee for such series shall be entitled to such relief as can be given at
law or in equity.
Section
5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security or of any
Coupon shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 3.07)
interest on such Security or Coupon on the respective Stated Maturity or
Maturities expressed in such Security or Coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section
5.09. Restoration of Rights and
Remedies.
If the
Trustee or any Holder 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 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
5.10. Rights and Remedies Cumulative.
Except as
otherwise expressly provided elsewhere in this Indenture, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section
5.11. Delay or Omission Not Waiver.
No delay
or omission of the Trustee or of any Holder 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 acquiescence
therein. Every right and remedy given by this Indenture or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
5.12. Control by Holders.
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
or expose the Trustee to personal liability;
(2) subject
to the provisions of Section 6.01, 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
5.13. 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
any such series waive any past default hereunder with respect to such series and
its consequences, except a default:
(1) in
the payment of the principal of (or premium, if any) or interest on any Security
of such series, or in the making or satisfaction of any sinking fund payment or
analogous obligation with respect to the Securities of such series,
or
(2) in
respect of a covenant or provision hereof which pursuant to Article Eleven
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 with respect to the Securities of
such series, and any Event of Default arising therefrom shall be deemed to have
been cured with respect to the Securities of such series, for every purpose of
this Indenture, but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section
5.14. Undertaking for Costs.
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, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
Section
5.15. Waiver of Stay or Extension
Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE
SIX
THE
TRUSTEE
Section
6.01. Certain Duties and
Responsibilities.
(a) If an Event of 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
person would exercise or use under the circumstances in the conduct of its own
affairs.
(b) Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(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. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.12.
(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) Every provision of
this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
Section
6.02. Notice of Defaults.
If a
default occurs hereunder with respect to Securities of any series and a
Responsible Officer has actual knowledge of such default, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 5.01(5) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof and if such default is corrected
within such period, the Trustee may conclude, consistent with the Trust
Indenture Act, that notice of such a default need not be provided to such
Holders of Securities. For the purpose of this Section, the 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.
Section
6.03. Certain Rights of Trustee.
Except as
otherwise provided in Section 6.01, and subject to Sections 315(a) through (d)
of the Trust Indenture Act:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, 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 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, rely upon an Officers’
Certificate;
(d) the
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, 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 pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity 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, 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;
and
(g) in no event shall the Trustee be responsible or liable
for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action; and
(h) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section
6.04. Not Responsible for Recitals or Issuance of
Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee 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, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Securities or the proceeds thereof. A Trustee shall have no
responsibility for the acts or omissions of any other Trustee appointed
hereunder, including any co-Trustee.
Section
6.05. May Hold Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, the Security Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons, and, subject to Sections
6.08 and 6.13, 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
6.06. Money Held in Trust.
Money in
any Currency held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by
law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section
6.07. Compensation and Reimbursement.
The
Company agrees:
(1) to
pay to the Trustee from time to time reasonable compensation in Dollars for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except
as otherwise expressly provided herein, to reimburse the Trustee in Dollars 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 in Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust or the performance of its duties 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.
As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim prior to the Securities and Coupons, if
any, upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of amounts due on the Securities and
Coupons.
If the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 5.01(7) or (8) occurs, the expenses and compensation for the services
will be intended to constitute expenses of administration under any applicable
bankruptcy or insolvency law.
Section
6.08. Disqualification; Conflicting
Interests.
If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall comply with the relevant provisions of
the Trust Indenture Act and this Indenture.
Section
6.09. Corporate Trustee Required;
Eligibility
There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person 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 shall serve as trustee for the Securities of any series issued
hereunder. 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
6.10. 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 under Section 6.11.
(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 an
instrument of acceptance by a successor Trustee 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
and a successor Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
retiring Trustee and to the Company.
(1) the
Trustee shall fail to comply with Section 6.08 with respect to the Securities of
any series after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security of such series for at least six
months, or
(2) the
Trustee shall cease to be eligible under Section 6.09 with respect to the
Securities of any series and shall fail to resign after written request therefor
by the Company or by any such Holder, or
(3) (3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in
any such case, (i) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security of any series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee for the Securities of such series.
(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 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders of such
series and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to 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 and to the
extent provided in Section 1.05 to the Holders of Securities of such
series. 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
6.11. Acceptance of Appointment by
Successor.
(a) In
the case of an appointment hereunder of a successor Trustee with respect to all
Securities, each 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 request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 6.07.
(b) In
case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (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 any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any 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
6.12. Merger, Conversion, Consolidation or
Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that 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. In case any Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section
6.13. Preferential Collection of Claims Against
Company.
If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities or the Coupons, if any), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor). A Trustee who
has resigned or been removed shall be subject to the Trust Indenture Act to the
extent indicated.
Section
6.14. Appointment of Authenticating
Agent.
As long
as any Securities of a series remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the “AUTHENTICATING AGENT”) appointed, for
such period as the Company shall elect, by the Trustee for such series of
Securities to act as its agent on its behalf and subject to its direction in
connection with the authentication and delivery of each series of Securities for
which it is serving as Trustee. Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by such Trustee hereunder. Wherever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee for such series or to the Trustee’s Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent for
such series and a Certificate of Authentication executed on behalf of such
Trustee by an Authenticating Agent. Such Authenticating Agent 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,
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. 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.
Any
corporation into which any 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 any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent with respect
to all series of Securities for which it served as Authenticating Agent,
provided such corporation shall otherwise be eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14 with respect to one or more or all series of
Securities, the Trustee for such series shall upon Company Request appoint a
successor Authenticating Agent, and the Company shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 1.05. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. The
Trustee for the Securities of such series agrees to pay to the Authenticating
Agent for such series 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 6.07.
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 series of Debt Securities issued under the within mentioned
Indenture.
|
The
Bank of New York Mellon Trust Company, N.A.,
As
Trustee
|
|
|
|
By:
[Insert name of authenticating agent],
|
|
|
As
Authenticating Agent
|
|
|
|
|
By:
|
|
|
|
|
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.01. Company to Furnish Trustee Names and
Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee for the Securities
of each series:
(1) semi-annually,
not more than 15 days after a Regular Record Date with respect to an Interest
Payment Date for the Registered Securities of such series (or on such other
semi-annual dates in each year as shall be established as contemplated by
Section 3.01 if the Securities of any series do not bear interest payable on
semi-annual Interest Payment Dates and as shall comply with the requirements of
the Trust Indenture Act) a list, in such form as the Trustee may reasonably
require, containing all information in the possession or control of the Company
or any Paying Agent as to the names and addresses of the Holders of Registered
Securities of such series as of a date not more than 15 days prior to the time
such information is furnished or caused to be furnished,
(2) at
such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished or
caused to be furnished, and
(3) such
information concerning the Holders of Bearer Securities which is known to the
Company; provided that the Company shall have no obligation to investigate any
matter relating to any Holder of a Bearer Security or a Coupon;
provided,
however, that if and so long as the Trustee shall be the Security Registrar for
the Securities of any series, no such list need be furnished with respect to the
Securities of such series.
Section
7.02. Preservation of Information; Communication to
Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.01 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) The
rights of the Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(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 made pursuant
to Section 312 of the Trust Indenture Act, 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
312(b) of the Trust Indenture Act.
Section
7.03. Reports by Trustee.
(a) Within
60 days after May 15 of each year (commencing with the first May 15 that occurs
after the first issuance of Securities pursuant to this Indenture), the Trustee
shall transmit to the Holders of Securities, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, a brief report if
required by Section 313(a) of the Trust Indenture Act, dated as of such May
15. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act and shall transmit to Holders, in the manner and to the extent
provided in said Section 313(c), such other reports, if any, as may be required
pursuant to the Trust Indenture Act.
(b) A
copy of each such report shall, at the time of such transmission to Holders and
in accordance with the Trust Indenture Act, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section
7.04. Reports by Company.
The
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and reports, and such summaries thereof and copies
of portions thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same shall be filed with the
Commission.
ARTICLE
EIGHT
CONCERNING
THE HOLDERS
Section
8.01. Acts of Holders.
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 signed by such Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “ACT” of
the Holders signing such instrument or instruments. Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Outstanding Securities of any series may take any Act,
the fact that the Holders of such specified percentage have joined therein may
be evidenced (a) by the instrument or instruments executed by Holders in person
or by agent or proxy appointed in writing, or (b) by the record of Holders
voting in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Holders.
Section
8.02. Proof of Ownership; Proof of Execution of
Instruments by Holder.
The
ownership of Registered Securities of any series shall be proved by the Security
Register for such series or by a certificate of the Security Registrar for such
series.
The
ownership of Bearer Securities shall be proved by production of such Bearer
Securities or by a certificate executed by any bank or trust company, which
certificate shall be dated and shall state that on the date thereof a Bearer
Security bearing a specified identifying number or other mark was deposited with
or exhibited to the person executing such certificate by the person named in
such certificate, or by any other proof of possession reasonably satisfactory to
the Trustee. The holding by the person named in any such certificate
of any Bearer Security specified therein shall be presumed to continue for a
period of one year unless at the time of determination of such holding (1)
another certificate bearing a later date issued in respect of the same Bearer
Security shall be produced, (2) such Bearer Security shall be produced by some
other person, (3) such Bearer Security shall have been registered on the
Security Register, if, pursuant to Section 3.01, such Bearer Security can be so
registered, or (4) such Bearer Security shall have been cancelled or
paid.
Subject
to the provisions of Sections 6.01, 6.03 and 9.05, proof of the execution of a
writing appointing an agent or proxy and of the execution of any instrument by a
Holder or his agent or proxy shall be sufficient and conclusive in favor of the
Trustee and the Company if made in the following manner:
The fact
and date of the execution by any such person of any instrument may be proved by
the certificate of any notary public or other officer authorized to take
acknowledgements of deeds, that the person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other person acting in
a representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The
record of any Holders’ meeting shall be proved in the manner provided in Section
9.06.
The
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section so long as the request is a reasonable
one.
Section
8.03. Persons Deemed Owners.
The
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Registered Security is registered as, and such Person
shall be deemed to be, the owner of such Registered Security for the purpose of
receiving payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest, if any, on such Registered Security and for all other
purposes whatsoever, whether or not such Registered 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. The Company, the
Trustee, and any agent of the Company or the Trustee may treat the Holder of any
Bearer Security or of any Coupon as, and such Holder shall be deemed to be, the
absolute owner of such Bearer Security or Coupon for the purposes of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer 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. All payments made to any Holder,
or upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon such
Security or Coupon.
Section
8.04. Revocation of Consents; Future Holders
Bound.
At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any Act by the Holders of the percentage in
aggregate principal amount of the Outstanding Securities specified in this
Indenture in connection with such Act, any Holder of a Security the number,
letter or other distinguishing symbol of which is shown by the evidence to be
included in the Securities the Holders of which have consented to such Act may,
by filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.02, revoke such Act so far as it
concerns such Security. Except as aforesaid, any such Act taken by
the Holder of any Security shall be conclusive and binding upon such Holder and,
subject to the provisions of Section 5.08, upon all future Holders of such
Security and all past, present and future Holders of Coupons, if any,
appertaining thereto and of any Securities and Coupons issued on transfer or in
lieu thereof or in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon such Security or Coupons or such
other Securities or Coupons.
ARTICLE
NINE
HOLDERS’
MEETINGS
Section
9.01. Purposes of Meetings.
A meeting
of Holders of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article Nine for any of the following
purposes:
(1) to
give any notice to the Company or to the Trustee for such series, or to give any
directions to the Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the provisions of Article
Five;
(2) to
remove the Trustee for such series and appoint a successor Trustee pursuant to
the provisions of Article Six;
(3) to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 11.02; or
(4) to
take any other action authorized to be taken by or on behalf of the Holders of
any specified aggregate principal amount of the Outstanding Securities of any
one or more or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
Section
9.02. Call of Meetings by Trustee.
The
Trustee for any series may at any time call a meeting of Holders of such series
to take any action specified in Section 9.01, to be held at such time or times
and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to Holders of such
series in the manner and to the extent provided in Section 1.05. Such
notice shall be given not less than 20 days nor more than 90 days prior to the
date fixed for the meeting.
Section
9.03. Call of Meetings by Company or
Holders.
In case
at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in aggregate principal amount of the Outstanding Securities of a
series or of all series, as the case may be, shall have requested the Trustee
for such series to call a meeting of Holders of any or all such series by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have given the notice of such
meeting within 20 days after the receipt of such request, then the Company or
such Holders may determine the time or times and the place or places for such
meetings and may call such meetings to take any action authorized in Section
9.01, by giving notice thereof as provided in Section 9.02.
Section
9.04. Qualifications for Voting.
To be
entitled to vote at any meeting of Holders a Person shall be (a) a Holder of a
Security of the series with respect to which such meeting is being held or (b) a
Person appointed by an instrument in writing as agent or proxy by such
Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section
9.05. Regulations.
Notwithstanding
any other provisions of this Indenture, the Trustee for any series may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
such series, in regard to proof of the holding of Securities of such series and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
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 such series as provided in Section 9.03, in which case the Company or the
Holders calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by a majority vote of the meeting.
Subject
to the provisos in the definition of “Outstanding,” at any meeting each Holder
of a Security of the series with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000 principal amount
(or such other amount as shall be specified as contemplated by Section 3.01) of
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
other than by virtue of Outstanding Securities of such series held by him or
instruments in writing duly designating him as the person to vote on behalf of
Holders of Securities of such series. Any meeting of Holders with
respect to which a meeting was duly called pursuant to the provisions of Section
9.02 or 9.03 may be adjourned from time to time by a majority of such Holders
present and the meeting may be held as so adjourned without further
notice.
Section
9.06. Voting.
The vote
upon any resolution submitted to any meeting of Holders with respect to which
such meeting is being held shall be by written ballots on which shall be
subscribed the signatures of such Holders or of their representatives by proxy
and the serial number or numbers of the Securities held or represented by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Holders shall be taken and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was transmitted
as provided in Section 9.02. The record shall show the serial numbers
of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the
Trustee.
Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section
9.07. No Delay of Rights by Meeting.
Nothing
contained in this Article Nine shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
any Holder under any of the provisions of this Indenture or of the Securities of
any series.
ARTICLE
TEN
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
10.01. Company May Consolidate, Etc., Only on Certain
Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease 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 conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety (the “SUCCESSOR PERSON”)
shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on all the Securities and
the performance or observance of every covenant of this Indenture 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) if,
as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not otherwise
be permitted by this Indenture without making effective provision whereby the
Outstanding Securities and any other indebtedness of the Company then entitled
thereto shall be equally and ratably secured with any and all indebtedness and
obligations secured thereby, the Company or such successor Person, as the case
may be, shall take such steps as shall be necessary effectively to secure all
Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Section
10.02. Successor Corporation Substituted.
Upon any
consolidation of the Company with or merger of the Company into any other
Person, or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease 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 the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE
ELEVEN
SUPPLEMENTAL
INDENTURES
Section
11.01. Supplemental Indentures Without Consent of
Holders.
Without
the consent of any Holders, 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, in form satisfactory to the Trustee, 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 the Coupons, if any, appertaining thereto (and if
such covenants are to be for the benefit of less than all series, 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, stating that such Events of Default are
expressly being included solely to be applicable to such series);
or
(4) to
add or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities of any series in
bearer form, registrable or not registrable, and with or without Coupons, 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 the issuance of Securities of any series
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
(5) to
change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination (i) shall become effective only when there is no
Outstanding Security or Coupon of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision
and as to which such supplemental indenture would apply, or (ii) shall not apply
to any Security which is outstanding prior to the effectiveness of such change
or elimination; or
(6) to
secure the Securities; or
(7) to
supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of
Securities pursuant to Article Four or Fifteen, provided that any such action
pursuant to this clause (7) shall not adversely affect the interests of the
Holders of Securities of such series or any other series of Securities or any
related Coupons in any material respect; or
(8) to
establish the form or terms of Securities and Coupons, if any, of any series as
permitted by Sections 2.01 and 3.01; or
(9) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to one or more series of Securities 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 6.11; or
(10) 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
which shall not be inconsistent with the provisions of this Indenture; provided
that any such action pursuant to this clause (10) shall not adversely affect in
any material respect the interests of the Holders of Outstanding Securities or
Coupons, if any, of any series created prior to the execution of such
supplemental indenture and as to which such supplemental indenture would
apply.
Section
11.02. 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
voting separately, 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 under this Indenture of Securities of each such series; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security of each such series affected
thereby,
(1) change
the Stated Maturity of the principal of, or installment of interest, if any, on,
any Security, or reduce the principal amount thereof or the interest thereon or
any premium payable upon redemption thereof, or change the Stated Maturity of or
reduce the amount of any payment to be made with respect to any Coupon, or
change the Currency or Currencies in which the principal of (and premium, if
any) or interest on such Security is denominated or payable, or change the place
where any such amount is payable, or reduce the amount of the principal of a
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or adversely
affect the right of repayment or repurchase, if any, at the option of the
Holder, or reduce the amount of, or postpone the date fixed for, any payment
under any sinking fund or analogous provisions for any Security, or impair the
right to institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or limit the obligation of the Company to maintain a paying
agency outside the United States for payment on Bearer Securities as provided in
Section 12.03; or
(2) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(3) modify
any of the provisions of this Section, Section 5.13 or Section 12.09, 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 of each series affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes in
this Section and Section 12.09, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11 and 11.01(7); or
(4) make
any change in the terms of the subordination of the Securities in a manner
adverse in any material respect to the Holders of any series of Outstanding
Securities.
It shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture with respect to one or more particular series of
Securities and Coupons, if any, or which modifies the rights of the Holders of
Securities and Coupons 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 and Coupons, if any, of any other series.
Section
11.03. Subordination Unimpaired.
This
Indenture may not be amended at any time to alter the subordination, as provided
herein, of any of the Securities then Outstanding without the written consent of
the requisite holders of each series of debt securities representing Senior
Indebtedness (as determined in accordance with the terms of the instrument
governing such Senior Indebtedness) then outstanding that would be adversely
affected thereby.
Section
11.04. 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 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which adversely
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise in any material respect.
Section
11.05. 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 and
Coupons theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
Section
11.06. 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
11.07. Reference in Securities to Supplemental
Indentures.
Securities
and Coupons, if any, 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 and Coupons 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 and Coupons of such series.
Section
11.08. Notice of Supplemental Indenture.
Promptly
after the execution by the Company and the appropriate Trustee of any
supplemental indenture pursuant to Section 11.02, the Company shall transmit, in
the manner and to the extent provided in Section 1.05, to all Holders of any
series of the Securities affected thereby, a notice setting forth in general
terms the substance of such supplemental indenture.
ARTICLE
TWELVE
COVENANTS
Section
12.01. Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay the principal of (and premium, if any) and
interest on the Securities in accordance with the terms of the Securities, the
Coupons and this Indenture. Unless otherwise specified as
contemplated by Section 3.01 with respect to any series of Securities or except
as otherwise provided in Section 3.06, 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. If so provided in the terms of any series of
Securities established as provided in Section 3.01, the interest, if any, due in
respect of any temporary Global Note or permanent Global Note, together with any
additional amounts payable in respect thereof, as provided in the terms and
conditions of such Security, shall be payable only upon presentation of such
Security to the Trustee for notation thereon of the payment of such
interest.
Section
12.02. Officer’s Certificate as to Default.
The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company (which on the date hereof is the calendar year)
ending after the date hereof, an Officers’ Certificate stating whether or not to
the best knowledge of the Company, the Company is in default in the performance
and observance of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which the signers may have
knowledge.
Section
12.03. 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
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City and State of New York, an
office or agency where any Registered Securities of that series may be presented
or surrendered for payment, where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related Coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) 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, if so provided pursuant
to Section 3.01); 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, and
(C) subject to any laws or regulations applicable thereto, in a Place of Payment
for that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee (in
the case of Registered Securities) and at the principal London office of the
Trustee (in the case of Bearer Securities), and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.
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, if so provided pursuant to Section 3.01)
shall be made at the office of the Company’s Paying Agent in the Borough of
Manhattan, The City and State 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.
The
Company may also from time to time designate different or additional offices or
agencies to be maintained for such purposes (in or outside of such Place of
Payment), and may from time to time rescind any such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
Section
12.04. 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 and Coupons, if any, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) 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 of its
action or failure so to act.
Whenever
the Company shall have one or more Paying Agents with respect to any series of
Securities and Coupons, it will, on or prior to each due date of the principal
(and premium, if any) or interest on any Securities of such series, deposit with
any such Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held as provided by the Trust
Indenture Act, and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to
act.
The
Company will cause each Paying Agent with respect to 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) comply
with all provisions of the Trust Indenture Act applicable to it as Paying Agent
and
(2) during
the continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on
any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security or Coupon 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 transmitted in the manner and to the extent
provided by Section 1.05, 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 notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section
12.05. Corporate Existence.
Subject
to Article Ten, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
Section
12.06. Purchase of Securities by Company.
If the
Securities of a series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland and such stock exchange shall so require, the
Company will not purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
Section
12.07. Limitation Upon Mortgages and Liens.
The
Company will not at any time directly or indirectly create or assume and will
not cause or permit a Subsidiary directly or indirectly to create or assume,
otherwise than in favor of the Company or a Wholly-Owned Subsidiary, any
mortgage, pledge or other lien or encumbrance upon any Principal Facility or any
interest it may have therein or upon any stock of any Subsidiary or any
indebtedness of any Subsidiary to the Company or any other Subsidiary, whether
now owned or hereafter acquired, without making effective provision (and the
Company covenants that in such case it will make or cause to be made, effective
provision) whereby the Outstanding Securities and any other indebtedness of the
Company then entitled thereto shall be secured by such mortgage, pledge, lien or
encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations and
indebtedness shall be so secured (provided, that for the purpose of providing
such equal and ratable security, the principal amount of Outstanding Securities
of any series of Discount Securities shall be such portion of the principal
amount as may be specified in the terms of that series); provided, however, that
the foregoing covenant shall not be applicable to the following:
(a) (i)
any mortgage, pledge or other lien or encumbrance on any such property hereafter
acquired or constructed by the Company or a Subsidiary, or on which property so
constructed is located, and created prior to, contemporaneously with or within
360 days after, such acquisition or construction or the commencement of
commercial operation of such property to secure or provide for the payment of
any part of the purchase or construction price of such property, or (ii) the
acquisition by the Company or a Subsidiary of such property subject to any
mortgage, pledge, or other lien or encumbrance upon such property existing at
the time of acquisition thereof, whether or not assumed by the Company or such
Subsidiary, or (iii) any mortgage, pledge, or other lien or encumbrance existing
on the property, shares of stock or indebtedness of a corporation at the time
such corporation shall become a Subsidiary, or (iv) any conditional sales
agreement or other title retention agreement with respect to any property
hereafter acquired or constructed; provided that, in the case of clauses (i)
through (iv) of this Section 12.07(a), the lien of any such mortgage, pledge or
other lien does not spread to property owned prior to such acquisition or
construction or to other property thereafter acquired or constructed other than
additions to such acquired or constructed property and other than property on
which property so constructed is located; and provided, further, that if a firm
commitment from a bank, insurance company or other lender or investor (not
including the Company, a Subsidiary or an Affiliate of the Company) for the
financing of the acquisition or construction of property is made prior to,
contemporaneously with or within the 360-day period hereinabove referred to, the
applicable mortgage, pledge, lien or encumbrance shall be deemed to be permitted
by this subsection (a) whether or not created or assumed within such
period;
(b) any
mortgage, pledge or other lien or encumbrance created for the sole purpose of
extending, renewing or refunding any mortgage, pledge, lien or encumbrance
permitted by subsection (a) of this Section; provided, however, that the
principal amount of indebtedness secured thereby shall not exceed the principal
amount of indebtedness so secured at the time of such extension, renewal or
refunding and that such extension, renewal or refunding mortgage, pledge, lien
or encumbrance shall be limited to all or any part of the same property that
secured the mortgage, pledge or other lien or encumbrance extended, renewed or
refunded;
(c) liens
for taxes or assessments or governmental charges or levies not then due and
delinquent or the validity of which is being contested in good faith, and
against which an adequate reserve has been established; liens on any such
property created in connection with pledges or deposits to secure public or
statutory obligations or to secure performance in connection with bids or
contracts; materialmen’s, mechanics’, carrier’s, workmen’s, repairmen’s or other
like liens; or liens on any such property created in connection with deposits to
obtain the release of such liens; liens on any such property created in
connection with deposits to secure surety, stay, appeal or customs bonds; liens
created by or resulting from any litigation or legal proceeding which is
currently being contested in good faith by appropriate proceedings; leases and
liens, rights of reverter and other possessory rights of the lessor thereunder;
zoning restrictions, easements, rights-of-way or other restrictions on the use
of real property or minor irregularities in the title thereto; and any other
liens and encumbrances similar to those described in this subsection, the
existence of which does not, in the opinion of the Company, materially impair
the use by the Company or a Subsidiary of the affected property in the operation
of the business of the Company or a Subsidiary, or the value of such property
for the purposes of such business;
(d) any
contracts for production, research or development with or for the Government,
directly or indirectly, providing for advance, partial or progress payments on
such contracts and for a lien, paramount to all other liens, upon money advanced
or paid pursuant to such contracts, or upon any material or supplies in
connection with the performance of such contracts to secure such payments to the
Government; and liens or other evidences of interest in favor of the Government,
paramount to all other liens, on any equipment, tools, machinery, land or
buildings hereafter constructed, installed or purchased by the Company or a
Subsidiary primarily for the purpose of manufacturing or producing any product
or performing any development work, directly or indirectly, for the Government
to secure indebtedness incurred and owing to the Government for the
construction, installation or purchase of such equipment, tools, machinery, land
or buildings. For the purpose of this subsection (d), “Government”
shall mean the Government of the United States of America and any department,
agency or political subdivision thereof and the government of any foreign
country with which the Company or its Subsidiaries is permitted to do business
under applicable law and any department, agency or political subdivision
thereof;
(e) any
mortgage, pledge or other lien or encumbrance created after the date of this
Indenture on any property leased to or purchased by the Company or a Subsidiary
after that date and securing, directly or indirectly, obligations issued by a
State, a territory or a possession of the United States, or any political
subdivision of any of the foregoing, or the District of Columbia, to finance the
cost of acquisition or cost of construction of such property, provided that the
interest paid on such obligations is entitled to be excluded from gross income
of the recipient pursuant to Section 103(a) (1) of the Code (or any successor to
such provision) as in effect at the time of the issuance of such
obligations;
(f) any
mortgage, pledge or other lien or encumbrance on any property now owned or
hereafter acquired or constructed by the Company or a Subsidiary, or on which
property so owned, acquired or constructed is located, to secure or provide for
the payment of any part of the construction price or cost of improvements of
such property, and created prior to, contemporaneously with or within 360 days
after, such construction or improvement; provided, that if a firm commitment
from a bank, insurance company or other lender or investor (not including the
Company, a Subsidiary or an Affiliate of the Company) for the financing of the
acquisition or construction of property is made prior to, contemporaneously with
or within the 360-day period hereinabove referred to, the applicable mortgage,
pledge, lien or encumbrance shall be deemed to be permitted by this subsection
(f) whether or not created or assumed within such period; and
(g) any
mortgage, pledge or other lien or encumbrance not otherwise permitted under this
Section; provided, the aggregate amount of indebtedness secured by all such
mortgages, pledges, liens or encumbrances, together with the aggregate sale
price of property involved in sale and leaseback transactions not otherwise
permitted except under Section 12.08(a) does not exceed 15% of Consolidated
Stockholders’ Equity.
Section
12.08. Limitation Upon Sale and Leaseback
Transactions.
The
Company will not, and will not permit any Subsidiary to, sell or transfer
(except to the Company or one or more Wholly-Owned Subsidiaries, or both) any
Principal Facility owned by it on the date of this Indenture with the intention
of taking back a lease of such property, other than a lease for a temporary
period (not exceeding 36 months) with the intent that the use by the Company or
such Subsidiary of such property will be discontinued at or before the
expiration of such period, unless either:
(a) the
sum of the aggregate sale price of property involved in sale and leaseback
transactions not otherwise permitted under this Section plus the aggregate
amount of indebtedness secured by all mortgages, pledges, liens and encumbrances
not otherwise permitted except under Section 12.07(g) does not exceed 15% of
Consolidated Stockholders’ Equity; or
(b) the
Company within 120 days after the sale or transfer shall have been made by the
Company or by any such Subsidiary applies an amount equal to the greater of (i)
the net proceeds of the sale of the Principal Facility sold and leased back
pursuant to such arrangement or (ii) the fair market value of the Principal
Facility sold and leased back at the time of entering into such arrangement
(which may be conclusively determined by the Board of Directors of the Company)
to the retirement of Securities or other Funded Debt of the Company ranking on a
parity with the Securities; provided, that the amount required to be applied to
the retirement of Outstanding Securities or other Funded Debt of the Company
pursuant to this clause (b) shall be reduced by (1) the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of any
Securities delivered within 120 days after such sale to the Trustee for
retirement and cancellation, and (2) the principal amount of any other Funded
Debt of the Company ranking on a parity with the Securities voluntarily retired
by the Company within 120 days after such sale, whether or not any such
retirement of Funded Debt shall be specified as being made pursuant to this
clause (b) . Notwithstanding the foregoing, no retirement referred to
in this clause (b) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment
provision.
Section
12.09. Waiver of Certain Covenants.
The
Company may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 12.05, 12.07 and 12.08 (and, if so specified
pursuant to Section 3.01, any other covenant not set forth herein and specified
pursuant to Section 3.01 to be applicable to the Securities of any series,
except as otherwise provided pursuant to Section 3.01) 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 shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent expressly so 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
THIRTEEN
REDEMPTION
OF SECURITIES
Section
13.01. Applicability of Article.
Securities
of any series which are redeemable before their Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified pursuant to
Section 3.01 for Securities of any series) in accordance with this
Article.
Section
13.02. Election to Redeem; Notice to Trustee.
The
election of the Company to redeem (or, in the case of Discount Securities, to
permit the Holders to elect to surrender for redemption) any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Securities of any series
pursuant to Section 13.03, the Company shall, at least 60 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restrictions.
Section
13.03. Selection by Trustee of Securities to Be
Redeemed.
Except in
the case of a redemption in whole of the Bearer Securities or the Registered
Securities of such series, if less than all the Securities of any series are to
be redeemed at the election of the Company, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series 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 such series or
any integral multiple thereof) of the principal amount of Securities of such
series in a denomination larger than the minimum authorized denomination for
Securities of such series pursuant to Section 3.02 in the Currency in which the
Securities of such series are denominated. The portions of the
principal amount of Securities so selected for partial redemption shall be equal
to the minimum authorized denominations for Securities of such series pursuant
to Section 3.02 in the Currency in which the Securities of such series are
denominated or any integral multiple thereof, except as otherwise set forth in
the applicable form of Securities. In any case when more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such 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 Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be
redeemed.
Section
13.04. Notice of Redemption.
Notice of
redemption shall be given by the Company, or at the Company’s request, by the
Trustee in the name and at the expense of the Company, not less than 30 days and
not more than 60 days prior to the Redemption Date to the Holders of Securities
of any series to be redeemed in whole or in part pursuant to this Article
Thirteen, in the manner provided in Section 1.05. Any notice so given
shall be irrevocable and shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. Failure to give such
notice, or any defect in such notice to the Holder of any Security of a series
designated for redemption, in whole or in part, shall not affect the sufficiency
of any notice of redemption with respect to the Holder of any other Security of
such series.
All
notices of redemption shall state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(3) that
Securities of such series are being redeemed by the Company pursuant to
provisions contained in this Indenture or the terms of the Securities of such
series or a supplemental indenture establishing such series, if such be the
case, together with a brief statement of the facts permitting such
redemption,
(4) if
less than all Outstanding Securities 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,
(5) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed, and that interest thereon, if any, shall
cease to accrue on and after said date,
(6) that,
unless otherwise specified in such notice, Coupon Securities of any series, if
any, surrendered for redemption must be accompanied by all Coupons maturing
subsequent to the date fixed for redemption, failing which the amount of any
such missing Coupon or Coupons will be deducted from the Redemption
Price,
(7) the
Place or Places of Payment where such Securities are to be surrendered for
payment of the Redemption Price,
(8) if
Bearer Securities of any series are to be redeemed and any Registered Securities
of such series are not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption on this Redemption
Date pursuant to Section 3.05(b) or otherwise, the last date on which such
exchanges may be made, and
(9) that
the redemption is for a sinking fund, if such is the case.
Section
13.05. Deposit of Redemption Price.
On or
prior to the Redemption Date for any Securities, 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 12.04) an
amount of money in the Currency or Currencies in which such Securities are
denominated (except as provided pursuant to Section 3.01) sufficient to pay the
Redemption Price of such Securities or any portions thereof which are to be
redeemed on that date.
Section
13.06. Securities Payable on Redemption Date.
Notice of
redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price in
the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 or 3.10), and from and after such
date (unless the Company shall default in the payment of the Redemption Price)
such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price; 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
12.03) and, unless otherwise specified as contemplated by Section 3.01, only
upon presentation and surrender of Coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.01,
installments of interest on Registered Securities which have a Stated Maturity
on or prior to the Redemption Date for such Securities shall be payable
according to the terms of such Securities and the provisions of Section
3.07.
If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Security.
If any
Coupon Security surrendered for redemption shall not be accompanied by all
Coupons appertaining thereto maturing on or after the Redemption Date, the
Redemption Price for such Coupon Security may be reduced by an amount equal to
the face amount of all such missing Coupons. If thereafter the Holder
of such Coupon shall surrender to any Paying Agent outside the United States 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. 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.
Section
13.07. Securities Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered at the
Corporate Trust Office or such other office or agency of the Company as is
specified pursuant to Section 3.01 (in the case of Registered Securities) and at
an office of the Trustee or such other office or agency of the Company outside
the United States as is specified pursuant to Section 3.01 (in the case of
Bearer Securities) with, if the Company, the Security Registrar or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing, and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, of like tenor and form, 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, and,
in the case of a Coupon Security, with appropriate Coupons
attached. In the case of a Security providing appropriate space for
such notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion thereof.
ARTICLE
FOURTEEN
SINKING
FUNDS
Section
14.01. 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 pursuant to
Section 3.01 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 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 amount of any cash sinking fund payment may be subject to reduction
as provided in Section 14.02. 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
14.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities.
In lieu
of making all or any part of a mandatory sinking fund payment with respect to
any Securities of a series in cash, the Company may at its option, at any time
no more than sixteen months and no less than 45 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Securities of such
series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series which have been redeemed through the application of mandatory
sinking fund payments pursuant to the terms of the Securities of such series,
accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value,
provided that such Securities shall not have 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
mandatory sinking fund payment shall be reduced accordingly.
Section
14.03. Redemption of Securities for Sinking Fund.
Not less
than 60 days prior to each sinking fund payment date for any series of
Securities (unless a shorter period 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 that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash in the Currency or Currencies in which the Securities of such
series are denominated (except as provided pursuant to Section 3.01) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of such series pursuant to Section 14.02 and whether the Company
intends to exercise its rights to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the case of the failure of the Company to
deliver such certificate, the sinking fund payment due on the next succeeding
sinking fund payment date for such series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of the Securities of such
series subject to a mandatory sinking fund payment without the right to deliver
or credit Securities as provided in Section 14.02 and without the right to make
any optional sinking fund payment with respect to such series at such
time.
Any
sinking fund payment or payments (mandatory or optional) made in cash plus any
unused balance of any preceding sinking fund payments made with respect to the
Securities of any particular series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent) on the sinking fund
payment date on which such payment is made (or, if such payment is made before a
sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by
the Trustee (or by the Company if the Company is acting as its own Paying Agent)
to the redemption of Securities shall be added to the next sinking fund payment
received by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.04) for such series and,
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys
with respect to the Securities of any particular series held by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and held in trust
as provided in Section 12.04) on the last sinking fund payment date with respect
to Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity.
The
Trustee shall select or cause to be selected the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 13.03 and the
Company shall cause notice of the redemption thereof to be given in the manner
provided in Section 13.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 13.06.
On or
before each sinking fund payment date, the Company shall pay to the Trustee (or,
if the Company is acting as its own Paying Agent, the Company shall segregate
and hold in trust as provided in Section 12.04) in cash a sum, in the Currency
or Currencies in which Securities of such series are denominated (except as
provided pursuant to Sections 3.01 or 3.10), equal to the principal and any
interest accrued to the Redemption Date for Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this
Section.
Neither
the Trustee nor the Company shall redeem any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund for such series during the continuance of a
default in payment of interest, if any, on any Securities of such series or of
any Event of Default (other than an Event of Default occurring as a consequence
of this paragraph) with respect to the Securities of such series, except that if
the notice of redemption shall have been provided in accordance with the
provisions hereof, the Trustee (or the Company, if the Company is then acting as
its own Paying Agent) shall redeem such Securities if cash sufficient for that
purpose shall be deposited with the Trustee (or segregated by the Company) for
that purpose in accordance with the terms of this Article. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur and any moneys thereafter paid into
such sinking fund shall, during the continuance of such default or Event of
Default, be held as security for the payment of the Securities and Coupons, if
any, of such series; provided, however, that in case such default or Event of
Default shall have been cured or waived as provided herein, such moneys shall
thereafter be applied on or prior to the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section.
ARTICLE
FIFTEEN
DEFEASANCE
Section
15.01. Applicability of Article.
If,
pursuant to Section 3.01, provision is made for the defeasance of Securities of
a series, and if the Securities of such series are Registered Securities and
denominated and payable only in Dollars (except as provided pursuant to Section
3.01) then the provisions of this Article shall be applicable except as
otherwise specified pursuant to Section 3.01 for Securities of such
series. Defeasance provisions, if any, for Securities denominated in
a Foreign Currency or Currencies or for Bearer Securities may be specified
pursuant to Section 3.01.
Section
15.02. Company’s Option to Effect Defeasance or Covenant
Defeasance.
The
Company may at its option by Board Resolution, at any time, elect to have either
Section 15.03 or Section 15.04 applied to the Outstanding Securities upon
compliance with the applicable conditions set forth below in this Article
Fifteen.
Section
15.03. Defeasance and Discharge.
Upon the
Company’s exercise of the option provided in Section 15.02 applicable to this
Section 15.03 with respect to Securities of any series and upon satisfaction of
the applicable conditions set forth below, the Company shall be deemed to have
been discharged from its obligations, and the provisions of Article Sixteen
shall cease to be effective with respect to the Outstanding Securities of such
series (other than those specified in the next sentence) (hereinafter,
DEFEASANCE”), such defeasance to become effective on the date the applicable
conditions set forth below are satisfied. 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 the Securities of such
series and this Indenture insofar as the Securities of such series 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 the Securities of such series to receive, solely from the trust fund
described in Section 15.05 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on the
Securities of such series when such payments are due, (B) the Company’s
obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
12.03 and 12.04 and with respect to the Trustee under Section 6.07, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article Fifteen. Subject to compliance with the applicable
conditions under this Article Fifteen, the Company may exercise its option under
this Section 15.03 notwithstanding the prior exercise of its option under
Section 15.04.
Section
15.04. Covenant Defeasance.
Upon the
Company’s exercise of the option provided in Section 15.02 applicable to this
Section 15.04 with respect to Securities of any series and upon satisfaction of
the applicable conditions set forth below, (i) the Company shall be released
from its obligations under Sections 10.01, 12.07 and 12.08 with respect to the
Securities of such series (and, if so specified pursuant to Section 3.01, any
other obligation of the Company or restrictive covenant set forth herein or
added for the benefit of such series pursuant to Section 3.01) and (ii) the
occurrence of an event specified in Section 5.01(4) (with respect to any of
Section 10.01, 12.07 or 12.08 (and, if so specified pursuant to Section 3.01,
any such other obligation of the Company or restrictive covenant set forth
herein or added for the benefit of such series pursuant to Section 3.01)) shall
not be deemed to be an Event of Default, and (iii) the provisions of Article
Sixteen shall cease to be effective, in each case with respect to the Securities
of such series (hereinafter, “COVENANT DEFEASANCE”), such covenant defeasance to
become effective on the date the applicable conditions set forth below are
satisfied. For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or Article, whether
directly, or indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section
15.05. Conditions to Defeasance or Covenant
Defeasance.
Except as
otherwise indicated below, the following shall be the conditions to application
of either Section 15.03 or Section 15.04 to the then Outstanding Securities of
any series:
(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 6.09 who
shall agree to comply with the provisions of this Article Fifteen applicable to
the Trustee) 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 Securities of such series, (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 an amount, or
(c) a combination of (a) and (b), sufficient, in the written opinion (with
respect to (b) and (c)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, the principal of (including, without limitation,
any mandatory sinking fund payments or analogous obligations) (and premium, if
any, on) and each installment of interest on the Securities of such series on
the Stated Maturity of such principal (or premium, if any) or installment of
interest in accordance with the terms of this Indenture and of the Securities of
such series. For this purpose, “U.S. GOVERNMENT OBLIGATIONS” means
securities that are (x) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (y) 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
(as defined in Section 3(a) (2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such 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 principal of or interest on the
U.S. Government Obligation evidenced by such depository
receipt.
(2) In
the case of an election under Section 15.03, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (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 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 gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In
the case of an election under Section 15.04, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant defeasance
and will be subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The
Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that the Securities, if then listed on any securities exchange, will not
be delisted as a result of such deposit.
(5) Such
defeasance or covenant defeasance shall not cause the Trustee to have a
conflicting interest as such term is used in Section 6.08 and for purposes of
the Trust Indenture Act with respect to any securities of the
Company.
(6) No
Event of Default or event which with notice or lapse of time or both would
become an Event of Default shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 5.01(7) and (8) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(7) Such
defeasance or covenant defeasance shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(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 either the defeasance under Section 15.03 or the covenant defeasance
under Section 15.04 (as the case may be) have been complied
with.
(9) Such
defeasance or covenant defeasance shall not result in the trust arising from
such deposit constituting an investment company as defined in the Investment
Company Act of 1940, as amended, or such trust shall be qualified under such act
or exempt from regulation thereunder.
(10) At
the time of such deposit, (i) no default in the payment of any principal of or
premium or interest on any Senior Indebtedness shall have occurred and be
continuing, (ii) no event of default with respect to any Senior Indebtedness
shall have resulted in such Senior Indebtedness becoming, and continuing to be,
due and payable prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Indebtedness has been made or duly
provided for), and (iii) no other event of default with respect to any Senior
Indebtedness shall have occurred and be continuing permitting (after notice
or lapse of time or both) the holders of such Senior Indebtedness (or
a trustee on behalf of such holders) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise have become due and
payable.
Section
15.06. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions; Covenant Defeasance.
Subject
to the provisions of the last paragraph of Section 12.04, 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
15.06 and Section 15.07, the “TRUSTEE”) pursuant to Section 15.05 in respect of
the Securities of any series shall be held in trust and applied by the Trustee,
in accordance with the provisions of the Securities of such series 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 the Securities of such series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest. Money and U.S. Government Obligations so held in trust
shall not be subject to the provisions of Article Sixteen.
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 15.05 with respect to the Securities of any series or the
principal and interest received in respect of such U.S. Government Obligations
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.
Anything
in this Article Fifteen 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 15.05 with
respect to the Securities of any series 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 with respect to the Securities of such
series.
The
provisions of the last paragraph of Section 12.04 shall apply to any money held
by the Trustee or any Paying Agent under this Article Fifteen that remains
unclaimed for two years after the Maturity of any series of Securities for which
money or Government Obligations have been deposited pursuant to Section
15.05.
Section
15.07. Reinstatement.
If the
Trustee or the Paying Agent is unable to apply any money in accordance with
Section 15.06 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company’s obligations under this Indenture and the Securities of the series
with respect to which such money was deposited shall be revived and reinstated
as though no deposit had occurred pursuant to this Article Fifteen until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 15.06; provided, however, that if the Company makes any
payment of principal of (or premium, if any on) or interest on any Securities of
any series following the reinstatement of the Company’s obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent with respect
to the Securities of such series.
ARTICLE
SIXTEEN
SUBORDINATION
OF SECURITIES
Section
16.01. Agreement of Subordination.
The Company covenants and agrees, and
each Holder of Securities issued hereunder by his acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article Sixteen; and each Holder, whether upon original issue
or upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of,
premium, if any, and interest on all Securities issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter
incurred.
The provisions of this Article Sixteen
define the subordination of the Securities, as obligations of the Company, with
respect to Senior Indebtedness of the Company, as defined for the
Company.
No provision of this Article Sixteen
shall prevent the occurrence of any default or Event of Default
hereunder.
Section
16.02. Payments to Holders.
In the
event and during the continuation of any default in the payment of principal,
premium, interest or any other payment due on any Senior Indebtedness of the
Company continuing beyond the period of grace, if any, specified in the
instrument or lease evidencing such Senior Indebtedness of the Company, then,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with respect to the
principal of, or premium, if any, or interest on the Securities, except sinking
fund payments made by the acquisition of Securities under Section 14.03 prior to
the happening of such default and payments made pursuant to Article Four hereof
from monies deposited with the Trustee pursuant thereto prior to the happening
of such default.
Upon any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made on account of the
principal (and premium, if any) or interest on the Securities (except payments
made pursuant to Article Four hereof from monies deposited with the Trustee
pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Company, or distribution of
assets of the Company of and kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article Sixteen, shall (except as
aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness of the Company held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness of the Company may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness of
the Company in full, in money or money’s worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness
of the Company, before any payment or distribution is made to the Holders of the
Securities or to the Trustee.
In the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee or the
Holders of the Securities before all Senior Indebtedness of the Company is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness of the
Company or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness of the Company may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company remaining unpaid to the extent
necessary to pay all Senior Indebtedness of the Company in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For
purposes of this Article Sixteen, the words, “cash, property or securities”
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article Sixteen with
respect to the Securities to the payment of all Senior Indebtedness of the
Company which may at the time be outstanding; provided that (i) the Senior
Indebtedness of the Company is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the holders
of the Senior Indebtedness of the Company (other than leases) and of leases
which are assumed are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 16.02 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article Ten
hereof. Nothing in this Section 16.02 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.07.
Section
16.03. Subrogation of Securities.
Subject to the payment in full of all
Senior Indebtedness of the Company, the rights of the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness of the
Company to receive payments or distributions of cash, property or securities of
the Company applicable to the Senior Indebtedness of the Company until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of the Company of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Sixteen no payment over
pursuant to the provisions of this Article Sixteen, to or for the benefit of the
holders of Senior Indebtedness of the Company by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness of
the Company. It is understood that the provisions of this Article Sixteen are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness of the Company, on the other hand.
Nothing
contained in this Article Sixteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of its Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of its Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Sixteen of the holders of Senior
Indebtedness of the Company in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any
payment or distribution of assets of the Company referred to in this Article
Sixteen, the Trustee, subject to the provisions of Section 6.01, and the Holders
of the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
Section
16.04. Authorization by Holders.
Each Holder of a Security by his
acceptance thereof authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Sixteen appoints the Trustee his attorney-in-fact for
any and all such purposes.
Section
16.05. Notice to Trustee.
The Company shall give promptly written
notice to a Responsible Officer of the Trustee of any fact known to the Company
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article Sixteen.
Notwithstanding the provisions of this Article Sixteen or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article Sixteen, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof at the Corporate Trust Office of the
Trustee from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.01, shall be entitled in all
respects to assume that no such facts exist; provided that if on a date not
fewer than three Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Security) the Trustee shall not have received, with respect to such monies,
the notice provided for in this Section 16.05, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Notwithstanding
anything to the contrary hereinbefore set forth, nothing shall prevent any
payment by the Company or the Trustee to the Holders of monies in connection
with a redemption of Securities if (i) notice of such redemption has been given
pursuant to Article Thirteen or Section 4.01 hereof prior to the receipt by the
Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the redemption date.
The
Trustee conclusively shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Senior Indebtedness of the
Company or a trustee on behalf of any such holder or holders. In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Company to participate in any payment or distribution pursuant to this Article
Sixteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of the Company held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Sixteen, and if such evidence is
not furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
Section
16.06. Trustee’s Relation to Senior Indebtedness.
The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article Sixteen in respect
of any Senior Indebtedness of the Company at any time held by it, to the same
extent as any other holder of Senior Indebtedness of the Company and nothing
elsewhere in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Sixteen, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness of the Company
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty under this Indenture to the holders of Senior
Indebtedness of the Company and the Trustee shall not be liable to any holder of
Senior Indebtedness of the Company if it shall pay over or deliver to Holders of
Securities, the Company or any other Person money or assets to which any holder
of Senior Indebtedness of the Company shall be entitled by virtue of this
Article Sixteen or otherwise.
Section
16.07. No Impairment of Subordination.
No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Section
16.08. Rights of Trustee.
Nothing in this Article Sixteen shall
apply to claims of or payments to, the Trustee pursuant to Sections 4.02 or
6.07.
Section
16.09. Applicable to Paying Agents.
The term “Trustee” as used in this
Article Sixteen, shall (unless the context otherwise requires) be construed as
extending to and including the Paying Agent within its meaning as fully for all
intents and purposes as if the Paying Agent were named in this Article Sixteen
in addition to in place of the Trustee; provided, however, that Sections 16.06
and 16.08 shall not apply to the Company or any Affiliate of the Company if it
or such Affiliate acts as Paying Agent.
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 above written.
|
Attest:
|
|
|
|
|
By:
|
|
|
Title:
|
|
|
|
|
|
(Seal)
|
|
The
Bank of New York Mellon Trust Company,
N.A.,
as Trustee
|
|
|
|
By:
|
|
|
Title:
|
|
|
Attest:
|
|
|
|
By:
|
|
|
Title:
|
|
|
|
|
|
(Seal)
|
EXHIBIT
A
[FORM OF
CERTIFICATE TO BE GIVEN BY
PERSON
ENTITLED TO RECEIVE BEARER SECURITY
OR
INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
[Insert
title or sufficient description of Securities to be delivered]
This is
to certify that as of the date hereof and except as set forth below principal
amount of the above captioned Securities held by you for our account (i) is
owned by person(s) that are not United States person(s) (as defined below), (ii)
is owned by United States person(s) that are (a) foreign branches of United
States financial institutions (as defined in Section 1.165-12(c) (1) (v) of the
United States Treasury regulations) (“FINANCIAL INSTITUTIONS”) purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Company or the Company’s agent that it will comply with the
requirements of Section 165(j) (3) (A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the Treasury regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for the
purpose of resale during the restricted period (as defined in Section 1.163-5(c)
(2) (i) (D) (7) of the United States Treasury regulations), and in addition if
the owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) this is to further certify that such financial institution has not
acquired the Securities for the purpose 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 promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the beneficial
interest in the temporary global Security held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This
certificate excepts and does not relate to principal amount of Securities held
by you for our account as to which we are not able to provide a certificate in
this form. We understand that exchange of such portion of the
temporary global Note for definitive Bearer Securities or interests in a
permanent global Note cannot be made until we are able to provide a certificate
in this form.
We
understand that this certificate is required in connection with certain tax laws
and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
“UNITED
STATES PERSON” means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States and any estate or trust the income of which is subject
to United States federal income taxation regardless of its
source. “UNITED STATES” means the United States of America (including
the States and the District of Columbia) and its “POSSESSIONS” which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated: ,
20___
[To be
dated no earlier than the 10th day before the Exchange Date (or, in the event
that an Interest Payment Date occurs prior to the Exchange Date, to be dated no
earlier than the 10th day before such Interest Payment Date)]
EXHIBIT
B
[FORM OF
CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM,
S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION
OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
[Insert
title or sufficient description of Securities to be delivered]
The
undersigned certifies that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our “MEMBER ORGANIZATIONS”) substantially to the effect
set forth in the Indenture as of the date hereof,
principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
United States person(s) (as defined below), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(as defined in Section 1.165-12(c) (1) (v) of the United States Treasury
regulations) (“FINANCIAL INSTITUTIONS”) purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the
Company or the Company’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, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c) (2) (i) (D) (7) of the
United States Treasury regulations), and in addition United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We
further certify (i) that we are not making available for exchange or collection
of any interest any portion of the temporary Global Note excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We
understand that this certificate is required in connection with certain tax laws
and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
“UNITED
STATES PERSON” means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States and any estate or trust the income of which is subject
to United States federal income taxation regardless of its
source. “UNITED STATES” means the United States of America (including
the States and the District of Columbia) and its “POSSESSIONS” which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated: ,
20___
[To be
dated no earlier than the Exchange Date (or, in the event that an Interest
Payment Date occurs prior to the Exchange Date, to be dated such Interest
Payment Date)]
|
By:
|
|
|
|
Euroclear
Bank S.A./N.V. as
|
|
|
Operator
of the Euroclear System]
|
|
|
|
EXHIBIT
C
[FORM OF
NOTICE OF ELECTION UNDER SECTION 3.10(c)]
Notice of
Election
The
undersigned, as the Holder of [Title of Securities] (the “Registered
Securities”), issued as Registered Securities under the Indenture dated as of
_______________, 2010 (as amended and supplemented, the “Indenture”) between
Equifax, Inc. and The Bank of New York Mellon Trust Company, N.A., as
Trustee (the “Trustee”) hereby elects, pursuant to Section 3.10(c) of the
Indenture, to receive payments of [principal of (and premium, if any) and any
interest on the Registered Securities in the following Currency, which Currency
is one of the Currencies designated for such election pursuant to Section 3.01
of the Indenture:
The
election herein is made as to _____________________ principal amount of
Registered Securities, as to which the undersigned is the Holder, evidenced by
Registered Securities bearing the following numbers:
This
Notice of Election is delivered to the Trustee not later than the close of
business on the Election Date immediately proceeding the payment date on which
the election herein is to become effective, and such election shall remain in
effect in accordance with Section 3.10(c) of the Indenture.
The
election herein is subject to Section 3.10 of the Indenture (including, without
limitation, paragraphs (e) and (f) of said Section 3.10).
Terms
used herein and not otherwise defined herein, shall have the respective meanings
given to them in the Indenture.
Dated: