Exhibit 4(a)(1)
FORM OF INDENTURE
============================
UNITED AIR LINES, INC.
TO
[TRUSTEE NAME]
Trustee
---------
INDENTURE
Dated as of [Date]
Debt Securities
============================
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United Air Lines, Inc.
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive,
of the Trust Indenture Act of 1939, as
amended:
Provision of Trust
Indenture Act of 1939,
as amended Indenture Section
ss.310(a)(1) ..........................................6.9
(a)(2) ..........................................6.9
(a)(3) ..........................................Not Applicable
(a)(4) ..........................................Not Applicable
(b) ..........................................6.8, 6.10
(c) ..........................................Not Applicable
ss.311(a) ......................................... 6.13
(b) ..........................................6.13
(c) ..........................................Not Applicable
ss.312(a) ......................................... 7.1, 7.2(a)
(b) ..........................................7.2(b)
(c) ..........................................7.2(c)
ss.313(a) ......................................... 7.3(a)
(b) ..........................................7.3(a)
(c) ..........................................7.3(a)
(d) ..........................................7.3(b)
ss.314(a) ..........................................7.4
(a)(4) ..........................................1.1, 10.4
(b) ..........................................Not Applicable
(c)(1) ..........................................1.2
(c)(2) ..........................................1.2
(c)(3) ..........................................Not Applicable
(d) ..........................................Not Applicable
(e) ..........................................1.2
ss.315(a) ..........................................6.1
(b) ..........................................6.2
(c) ..........................................6.1
(d) ..........................................6.1
(e) ..........................................5.14
ss.316(a) ..........................................1.1
(a)(1)(A) ..........................................5.2, 5.12
(a)(1)(B) ..........................................5.13
(a)(2) ..........................................Not Applicable
(b) ..........................................5.8
(c) ..........................................1.4(c)
ss.317(a)(1) ..........................................5.3
(a)(2) ..........................................5.4
(b) ..........................................10.3
ss.318(a) ..........................................1.7
--------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
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Page
RECITALS OF THE COMPANY..............................1
ARTICLE I
Definitions and Other Provisions
of General Application........................................................1
Section 1.1 Definitions......................................................1
Act.........................................................2
Affiliate...................................................2
Attributable Debt...........................................2
Authenticating Agent........................................3
Authorized Newspaper........................................3
Bearer Security.............................................3
Board of Directors..........................................3
Board Resolution............................................3
Book-Entry Security.........................................3
Business Day................................................3
Capital Lease Obligations...................................3
Clearstream.................................................3
Commission..................................................4
Common Depository...........................................4
Company.....................................................4
Company Request" or "Company Order".........................4
Corporate Trust Office......................................4
corporation.................................................4
covenant defeasance.........................................4
CUSIP.......................................................4
default.....................................................4
Defaulted Interest..........................................4
defeasance..................................................4
Depository..................................................4
Euroclear...................................................4
Event of Default............................................4
--------------------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
ii
<PAGE>
Holder......................................................5
Indenture...................................................5
Interest Payment Date.......................................5
mandatory sinking fund payment..............................5
Maturity....................................................5
Notice of Default...........................................5
Officers' Certificate.......................................5
Opinion of Counsel..........................................5
optional sinking fund payment...............................5
Original Issue Discount Security............................5
Outstanding.................................................5
Paying Agent................................................6
Person......................................................7
Place of Payment............................................7
Predecessor Security........................................7
Principal Property..........................................7
Redemption Date.............................................7
Redemption Price............................................7
Registered Securities.......................................7
Regular Record Date.........................................7
Securities..................................................7
Security Register" and "Security Registrar".................7
Special Record Date.........................................7
Stated Maturity.............................................8
Subsidiary..................................................8
Trust Indenture Act.........................................8
Trustee.....................................................8
U.S. Government Obligations.................................8
Vice President..............................................8
Yield to Maturity...........................................8
Section 1.2 Compliance Certificates and Opinions.............................8
Section 1.3 Form of Documents Delivered to Trustee...........................9
Section 1.4 Acts of Holders; Record Dates....................................9
Section 1.5 Notices, Etc. to Trustee and Company............................11
Section 1.6 Notice to Holders; Waiver.......................................11
Section 1.7 Conflict with Trust Indenture Act...............................12
Section 1.8 Effect of Headings and Table of Contents........................12
Section 1.9 Successors and Assigns..........................................13
--------------------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
iii
<PAGE>
Section 1.10 Separability Clause.............................................13
Section 1.11 Benefits of Indenture...........................................13
Section 1.12 Governing Law...................................................13
Section 1.13 Legal Holidays..................................................13
Section 1.14 Language of Notices, Etc.......................................13
Section 1.15 Exemption from Individual Liability............................13
ARTICLE II
Security Forms...............................................................14
Section 2.1 Forms Generally.................................................14
Section 2.2 Form of Trustee's Certificate of Authentication.................15
Section 2.3 Securities in Global Form.......................................15
ARTICLE III
The Securities...............................................................16
Section 3.1 Amount Unlimited; Issuable in Series............................16
Section 3.2 Denominations...................................................19
Section 3.3 Execution, Authentication, Delivery and Dating..................19
Section 3.4 Temporary Securities............................................21
Section 3.5 Registration, Registration of Transfer and Exchange.............23
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities................26
Section 3.7 Payment of Interest; Interest Rights Preserved..................27
Section 3.8 Persons Deemed Owners...........................................28
Section 3.9 Cancellation....................................................29
Section 3.10 Computation of Interest.........................................29
Section 3.11 CUSIP Numbers..................................................29
ARTICLE IV
Satisfaction and Discharge...................................................30
Section 4.1 Satisfaction and Discharge of Indenture.........................30
Section 4.2 Application of Trust Money......................................31
ARTICLE V
Remedies.....................................................................31
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NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
iv
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Section 5.1 Events of Default...............................................31
Section 5.2 Acceleration of Maturity; Rescission and Annulment..............33
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.34
Section 5.4 Trustee May File Proofs of Claim................................34
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.....35
Section 5.6 Application of Money Collected..................................35
Section 5.7 Limitation on Suits.............................................35
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest...................................................36
Section 5.9 Restoration of Rights and Remedies..............................36
Section 5.10 Rights and Remedies Cumulative..................................37
Section 5.11 Delay or Omission Not Waiver....................................37
Section 5.12 Control by Holders.............................................37
Section 5.13 Waiver of Past Defaults........................................37
Section 5.14 Undertaking for Costs..........................................38
Section 5.15 Waiver of Stay or Extension Laws...............................38
ARTICLE VI
The Trustee..................................................................38
Section 6.1 Certain Duties and Responsibilities.............................38
Section 6.2 Notice of Defaults..............................................39
Section 6.3 Certain Rights of Trustee.......................................39
Section 6.4 Not Responsible for Recitals or Issuance of Securities..........40
Section 6.5 May Hold Securities.............................................40
Section 6.6 Money Held in Trust.............................................40
Section 6.7 Compensation and Reimbursement..................................40
Section 6.8 Disqualification; Conflicting Interests.........................41
Section 6.9 Corporate Trustee Required; Eligibility.........................41
Section 6.10 Resignation and Removal; Appointment of Successor...............41
Section 6.11 Acceptance of Appointment by Successor.........................43
Section 6.12 Merger, Conversion, Consolidation or Succession to Business....44
Section 6.13 Preferential Collection of Claims Against Company..............44
Section 6.14 Appointment of Authenticating Agent............................44
ARTICLE VII
Holders' Lists and Reports by Trustee and Company............................47
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.......47
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NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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Section 7.2 Preservation of Information; Communications to Holders..........47
Section 7.3 Reports by Trustee..............................................47
Section 7.4 Reports by Company..............................................48
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease.........................48
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms.............48
Section 8.2 Successor Substituted...........................................49
ARTICLE IX
Supplemental Indentures......................................................50
Section 9.1 Supplemental Indentures Without Consent of Holders..............50
Section 9.2 Supplemental Indentures with Consent of Holders.................51
Section 9.3 Execution of Supplemental Indentures............................52
Section 9.4 Effect of Supplemental Indentures...............................52
Section 9.5 Conformity with Trust Indenture Act.............................52
Section 9.6 Reference in Securities to Supplemental Indentures..............53
ARTICLE X
Covenants....................................................................53
Section 10.1 Payment of Principal, Premium and Interest.....................53
Section 10.2 Maintenance of Office or Agency................................53
Section 10.3 Money for Securities Payments to Be Held in Trust..............54
Section 10.4 Statement by Officers as to Default............................55
Section 10.5 Existence......................................................56
Section 10.6 Calculation of Original Issue Discount.........................56
Section 10.7 Appointments to Fill Vacancies in Trustee's Office.............56
ARTICLE XI
Redemption of Securities.....................................................56
Section 11.1 Applicability of Article.......................................56
Section 11.2 Election to Redeem; Notice to Trustee..........................56
Section 11.3 Selection by Trustee of Securities to Be Redeemed..............57
Section 11.4 Notice of Redemption...........................................57
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NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
vi
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Section 11.5 Deposit of Redemption Price....................................58
Section 11.6 Securities Payable on Redemption Date..........................58
Section 11.7 Securities Redeemed in Part....................................59
ARTICLE XII
Sinking Funds................................................................59
Section 12.1 Applicability of Article.......................................59
Section 12.2 Satisfaction of Sinking Fund Payments with Securities..........60
Section 12.3 Redemption of Securities for Sinking Fund......................60
ARTICLE XIII
Defeasance and Covenant Defeasance...........................................61
Section 13.1 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.............................61
Section 13.2 Defeasance and Discharge.......................................61
Section 13.3 Covenant Defeasance............................................61
Section 13.4 Conditions to Defeasance or Covenant Defeasance................62
Section 13.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provision.........64
Section 13.6 Reinstatement..................................................64
ARTICLE XIV
Meetings of Holders of Securities............................................65
Section 14.1 Purposes for Which Meetings May Be Called......................65
Section 14.2 Call, Notice and Place of Meetings.............................65
Section 14.3 Persons Entitled to Vote at Meetings...........................65
Section 14.4 Quorum; Action.................................................66
Section 14.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.......................................................67
Section 14.6 Counting Votes and Recording Action of Meetings................68
||
Exhibit A Form of Security
Exhibit B Forms of Certification
Exhibit B.1 Form of Certificate to be Given by Person Entitled
To Receive Bearer Security
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NOTE: This table of contents shall not, for any purpose, be deemed to
be a part of the Indenture.
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Exhibit B.2 Form of Certificate to be Given by Euroclear and Clearstream
in Connection with the Exchange of a Portion of a Temporary
Book-Entry Security
Exhibit B.3 Form of Certificate to be Given by Euroclear and Clearstream
to Obtain Interest Prior to an Exchange Date
Exhibit B.4 Form of Certificate to be Given by Beneficial Owners
to Obtain Interest Prior to an Exchange Date
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NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
viii
<PAGE>
INDENTURE, dated as of [Date] between United Air Lines,
Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at
1200 East Algonquin Road, Elk Grove Village, Illinois 60007, and [Trustee
Name], a [______________], as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, 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 at the date of such computation; and
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(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the
meaning specified in Section 1.4.
"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.
["Attributable Debt" means as to any particular lease
under which either the Company or any Restricted Subsidiary is at the time
liable as lessee for a term of more than 12 months and at any date as of
which the amount thereof is to be determined, the total net obligations of
the lessee for rental payments during the remaining term of the lease
(excluding any period for which such lease has been extended or may, at the
option of the lessor, be extended) discounted from the respective due dates
thereof to such determination date at a rate per annum equivalent to the
greater of (a) the weighted-average Yield to Maturity of the Outstanding
Securities, such average being weighted by the principal amount of the
Outstanding Securities of each series or, in the case of Original Issue
Discount Securities, such amount to be the principal amount of such
outstanding Original Issue Discount Securities that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to this Indenture and (b) the
interest rate inherent in such lease (as determined in good faith by the
Company), both to be compounded semi-annually. The net total obligations of
the lessee for rental payments under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with
respect to such period after excluding amounts required to be paid on
account of maintenance and repairs, services, insurance, taxes,
assessments, water rates and similar charges and contingent rents (such as
those based on sales or monetary inflation). If any lease is terminable by
the lessee upon the payment of a penalty and under the terms of the lease
the termination right is not exercisable until after the determination date
and the amount of such penalty discounted to the determination date as
provided above is less than the net amount of rentals payable after the
time as of which such termination could occur (the "termination time")
discounted to the determination date as provided above, then such
discounted penalty amount shall be used instead of such discounted amount
2
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of net rentals payable after the termination time in calculating the
Attributable Debt for such lease. If any lease is terminable by the lessee
upon the payment of a penalty and such termination right is exercisable on
the determination date and the amount of the net rentals payable under such
lease after the determination date discounted to the determination date as
provided above is greater than the amount of such penalty, the
"Attributable Debt" for such lease as of such determination date shall be
equal to the amount of such penalty.]
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same
or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form (to the
extent applicable thereto) established pursuant to Section 3.1 which is
payable to Bearer.
"Board of Directors" means either the board of directors
of the Company or any duly authorized committee of that board.
"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.
"Book-Entry Security" means a Security in the form
prescribed in Sections 2.2 through 2.4 evidencing all or part of a series
of Securities, issued to the Depository or Common Depository, as the case
might be, for such series or its nominee, and registered in the name of
such Depository, Common Depository or their respective nominees.
"Business Day," when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
"Capital Lease Obligations" of either the Company or any
Restricted Subsidiary means the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying the right
to use) real property, the term of which extends beyond 12 months, which
obligations are required to be classified and accounted for
3
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as a capital lease on a balance sheet of such Person under generally
accepted accounting principles (including Statement No. 13 of Financial
Accounting Standards Board) and, for the purposes of this Indenture, the
amount of such obligation shall be the capitalized amount thereof,
determined in accordance with generally accepted accounting principles
(including such Statement No. 13).
"Clearstream" means Clearstream Banking.
"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.
"Common Depository" has the meaning specified in Section 3.4.
"Company" means the corporation named as the "Company" in
the first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its President, its General Counsel or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller or Assistant Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of
the Trustee in [City, State] at which at any particular time its corporate
trust business shall be administered, which currently is located at
[_________________________].
"corporation" means a corporation, association, company,
joint-stock company, limited partnership, limited liability company or
business trust.
"covenant defeasance" has the meaning specified in
Section 13.3.
"CUSIP" has the meaning specified in Section 3.11.
"default" has the meaning specified in Section 6.2.
"Defaulted Interest" has the meaning specified in Section 3.7.
"defeasance" has the meaning specified in Section 13.2.
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"Depository" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depository for such series
by the Company pursuant to Section 3.1, initially The Depository Trust
Company, its nominees and their respective successors, which Person shall
be a clearing agency registered under the Securities Exchange Act of 1934,
as amended.
"Euroclear" means Morgan Guaranty Trust Company of New
York, Brussels Office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 5.1.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"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, including, for all purposes of this instrument, and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"mandatory sinking fund payment" has the meaning specified in
Section 12.1.
"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
or otherwise.
"Notice of Default" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, the General Counsel or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller or
Assistant Controller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
5
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"Opinion of Counsel" means a written opinion of counsel,
who may be an employee of or counsel for the Company, and who shall be
acceptable to the Trustee.
"optional sinking fund payment" has the meaning specified in
Section 12.1.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"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; 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;
(iii) Securities which have been paid pursuant to Section
3.6 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; and
(iv) Securities that have been defeased pursuant to
Section 13.2;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 5.2, (ii) the
principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.1 on the
date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent
on the date of original issuance of such Security of the amount determined
6
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as provided in (i) above) of such Security, and (iii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, 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 any premium and interest on the Securities of that series are payable
as specified as contemplated by Section 3.1.
"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 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Principal Property" means any manufacturing plant or
foundry located in the United States of America and owned and operated by
the Company or any Restricted Subsidiary on or after the date hereof, and
any manufacturing equipment owned by the Company or any Restricted
Subsidiary on or after the date hereof in such manufacturing plant.
"Manufacturing equipment" means manufacturing equipment in such
manufacturing plant directly used in the production of the Company's
products and parts and components thereof, and shall not include office
equipment, rolling stock and other equipment not directly used in the
production of the Company's products.
"Redemption Date," when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
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"Registered Securities" means any Security in the form
set forth in Sections 2.2 and 2.3 or established pursuant to Section 2.1
which is registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.1.
"Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security
or any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock, which under ordinary circumstances (not
dependent upon the happening of a contingency) has voting power to elect a
majority of the board of directors of such corporation (or similar
management body), is owned directly or indirectly by the Company or by one
or more Subsidiaries of the Company, or by the Company and one or more
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed;
provided, however, that if the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"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 that series.
"U.S. Government Obligations" has the meaning specified in
Section 13.4.
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"Vice President," when used with respect to the Company
or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity,
calculated at the time of issuance of a series of Securities or, if
applicable, at the most recent redetermination of interest on such series
and calculated in accordance with generally accepted financial practice.
Section 1.2 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 such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by
an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act
and any other requirements set forth in this Indenture. 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, however, 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 shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 1.3 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
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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 1.4 Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent 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. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
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(c) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such
series made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 7.1) prior to such
first solicitation or vote, as the case may be. With regard to any record
date for action to be taken by the Holders of one or more series of
Securities, only the Holders of Securities of such series on such date (or
their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The ownership of Registered Securities shall be proved
by the Security Register.
(e) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (ii)
such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security
or (iv) such Bearer Security is no longer Outstanding. The principal
amounts and serial numbers of Bearer Securities held by any Person, and the
date of holding the same, may also be proved in any other manner which the
Trustee deems sufficient.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
Section 1.5 Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument, Attention: General Counsel or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver.
-------------------------
Except as otherwise expressly provided herein or as
otherwise specified as contemplated by Section 3.1, where this Indenture
provides for notice to Holders of Securities of any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event, at
his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice; and
(b) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City of
New York and in such other city or cities as may be specified in such
Securities on a Business Day at least twice, the first such publication to
be not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered Securities by mail, then such
notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any
case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
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Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities shall
be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 1.7 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 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein, the
reconciliation and tie with certain provisions of the Trust Indenture Act
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.9 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 1.10 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 1.11 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, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
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Section 1.12 Governing Law.
-------------
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to the conflict of laws provisions thereof.
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of the Securities of
any series which specifically states that such provision shall apply in
lieu of this Section)) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity; provided, however, that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
Section 1.14 Language of Notices, Etc.
------------------------
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in
the English language, except that any published notice may be in an
official language of the country of publication.
Section 1.15 Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation of either, either
directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely the corporate obligations of the
Company and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or any successor corporation of either,
or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or
implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or
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implied therefrom, are hereby expressly waived and released as a condition
of and as a consideration for, the execution of this Indenture and the
issue of such Securities.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
---------------
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in
substantially the form set forth in Exhibits A or B, or in such other form
as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form
of Securities or coupons of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and
delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section
3.1, Bearer Securities shall have interest coupons attached.
The Trustee's certificate of authentication shall be in
substantially the form set forth in Section 2.5.
The definitive Securities shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[Trustee Name]
As Trustee
By:______________________________
Authorized Signatory
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Section 2.3 Securities in Global Form.
-------------------------
If Securities of a series are issuable in global form, as
specified as contemplated by Section 3.1, then, notwithstanding clause (10)
of Section 3.1 and the provisions of Section 3.2, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease
in the amount, of Outstanding Securities represented thereby shall be made
by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or Section 3.4; provided,
that such endorsement shall be made by the Common Depository with respect
to temporary global securities in bearer form. Subject to the provisions of
Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4
has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 shall
apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers
to the Trustee the Security in global form together with written
instructions (which need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7,
unless otherwise specified as contemplated by Section 3.1, payment of
principal of and any premium and interest on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except
as provided in the preceding paragraph, the Company, the Trustee and any
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agent of the Company and the Trustee shall treat a person as the Holder of
such principal amount of Outstanding Securities represented by a permanent
Book-Entry Security as shall be specified in a written statement of the
Holder of such permanent Book-Entry Security or, in the case of a permanent
Book- Entry Security in bearer form, of Euroclear or Clearstream and
produced to the Trustee by such Person.
ARTICLE III
The Securities
Section 3.1 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 3.3, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series;
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if
so, (i) whether beneficial owners of interests in any such
permanent Book-Entry Security may exchange such interests for
Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 3.5, and (ii) the name of the Common Depository or the
Depository, as the case may be, with respect to any Book-Entry
Security;
(4) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in whose name that Security (or one or more
17
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Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally
mature, and the extent to which, or the manner in which, any
interest payable on a temporary Book- Entry Security on an
Interest Payment Date will be paid if other than in the manner
provided in Section 3.4;
(5) the date or dates on which the principal of the
Securities of the series is payable and whether such date or dates
may be extended at the option of the Company;
(6) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method of calculating
such rate or rates of interest, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(7) whether the interest rate or interest rate formula,
as the case may be, for Securities of the series may be reset at
the option of the Company and, if so, the date or dates on which
such interest rate or interest rate formula, as the case may be,
may be reset;
(8) the place or places where, subject to the provisions
of Section 10.2, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange
and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(9) the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option
of the Company;
(10) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(11) the denominations in which any Registered Securities
of the series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the denomination or
denominations in which any Bearer Securities of the series shall
be issuable, if other than the denomination of $5,000;
18
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(12) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the
currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding"
in Section 1.1;
(13) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be
determined with reference to an index or formula, the manner in
which such amounts shall be determined;
(14) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of
the Company or a Holder thereof, in one or more currencies or
currency units other than that or those in which the Securities
are stated to be payable, the currency, currencies or currency
units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms
and conditions upon which such election is to be made;
(15) the application, if any, of Section 13.2 or 13.3 to the
Securities of any series;
(16) whether the Securities of the series shall be issued
in whole or in part in the form of one or more Book-Entry
Securities and, in such case, the Common Depository or Depository
with respect to such Book-Entry Security or Securities and the
circumstances under which any Book-Entry Security may be
registered for transfer or exchange, or authenticated and
delivered, in the name of a Person other than such Common
Depository or Depository or their respective nominees, if other
than as set forth in Section 3.5;
(17) 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 5.2; and
(18) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination
and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 3.3) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
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If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the 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 3.2 Denominations.
-------------
Unless otherwise provided as contemplated by Section 3.1,
with respect to the Securities of any series, the Registered Securities of
a series shall be issuable in denominations of $1,000 and any integral
multiple thereof and any Bearer Securities of a series shall be issuable in
the denomination of $5,000.
Section 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on
the Securities or coupons 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 or did not hold such offices at the date of
such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
Series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities, provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed
or otherwise delivered to any location in the United States; and provided,
further, that a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in
Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 3.4, the
notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary Book-Entry
Security shall be deemed to be delivery in connection with its original
issuance of such beneficial owner's interest in such permanent Book-Entry
Security. Except as permitted by Section 3.4 or 3.6, the Trustee shall not
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authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled.
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject
to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
immediately preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.1 or the
Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series
to be issued.
Unless otherwise provided for in the form of Security,
each Registered Security shall be dated the date of its authentication, and
each Bearer Security and any temporary 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.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
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such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
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 3.9, 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 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of any series
issuable as Bearer Securities, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the
following paragraphs), if temporary Securities of any series are issued,
the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto) the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of
any authorized denominations and of the same Stated Maturity and aggregate
principal amount and of like tenor, provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance
with the conditions set forth in Section 3.3. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
and tenor.
If temporary Securities of any series are issued in
global form, any such temporary Book-Entry Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or
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common depositary (the "Common Depositary"), for the benefit of Euroclear
and Clearstream, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
temporary Book-Entry Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate principal amount
equal to the principal amount of such temporary Book-Entry Security, or, if
so specified as contemplated by Section 3.1, a permanent Book-Entry
Security, in either case, executed by the Company. On or after the Exchange
Date such temporary Book-Entry Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange
for each portion of such temporary Book-Entry Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary Book-Entry
Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary Book-Entry Security shall be in definitive
bearer form, definitive registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified
as contemplated by Section 3.1, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary Book-Entry Security,
upon such presentation by the Common Depository, such temporary Book-Entry
Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
Book-Entry Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary Book-Entry Security held
for its account then to be exchanged, each in the form set forth in Exhibit
B.2 to this Indenture; and provided, further, that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary
Book-Entry Security only in compliance with the requirements of Section 3.3.
Unless otherwise specified in such temporary Book-Entry
Security, the interest of a beneficial owner of Securities of a series in a
temporary Book-Entry Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when the
account holder instructs Euroclear or Clearstream, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or
Clearstream, as the case may be, a certificate in the form set forth in
Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary Book-Entry Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary Book-Entry Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of Euroclear or Clearstream
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Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Book-Entry Security shall be delivered only outside
the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section 3.1, interest
payable on a temporary Book-Entry Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euroclear and Clearstream on such Interest Payment Date
upon delivery by Euroclear and Clearstream to the Trustee of a certificate
or certificates in the form set forth in Exhibit B.3 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 Book- Entry Security on such Interest Payment Date and who
have each delivered to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit B.4 to this Indenture. Any
interest so received by Euroclear and Clearstream and not paid as herein
provided shall be returned to the Trustee immediately prior to the
expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 10.3.
Section 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register 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 of Registered Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a Place of
Payment for that series as designated pursuant to Section 10.2, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series, of any authorized
denominations and of the same Stated Maturity and aggregate principal
amount and of like tenor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series,
of any authorized denominations and of the same Stated Maturity and
aggregate principal amount and of like tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
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making the exchange is entitled to receive. Except as otherwise specified
as contemplated by Section 3.1, Bearer Securities may not be issued in
exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any
series may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount
equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent
any such missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of
any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (a) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 3.1, any permanent Book-Entry Security
shall be exchangeable only as provided in this paragraph. If the beneficial
owners of interests in a permanent Book-Entry Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified
as contemplated by Section 3.1, then without unnecessary delay but in any
event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities
of that series in aggregate principal amount equal to the principal
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amount of such permanent Book-Entry Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged,
such permanent global Securities shall be surrendered from time to time by
the Common Depository or the Depository, as the case may be, and in
accordance with instructions given to the Trustee and the Common Depository
or the Depository, as the case may be (which instructions shall be in
writing but need not comply with Section 1.2 or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same
series without charge. The Trustee shall authenticate and make available
for delivery, in exchange for each portion of such surrendered permanent
Book-Entry Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor
as the portion of such permanent Book-Entry Security to be exchanged which
(unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, in which case the definitive
Securities exchanged for the permanent Book-Entry Security shall be
issuable only in the form in which the Securities are issuable, as
specified as contemplated by Section 3.1) shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that no
such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending on the relevant Redemption Date; and provided, further,
that no Bearer Security delivered in exchange for a portion of a permanent
Book-Entry Security shall be mailed or otherwise delivered to any location
in the United States. Promptly following any such exchange in part, such
permanent Book-Entry Security shall be returned by the Trustee to the
Common Depository or the Depository, as the case may be, or such other
depositary or Common Depository or Depository referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a permanent
Book-Entry Security after the close of business at the office or agency
where such exchange occurs on (a) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest
Payment Date, or (b) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, such interest or
Defaulted Interest will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent Book-Entry Security
is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
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Every Registered Security presented or surrendered for
registration of transfer or for 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 shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (a) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending at the close of
business on (i) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(ii) if Securities of the series are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if
Securities of the series are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption,
or (b) to register the transfer of or exchange any Registered Security so
selected for redemption, in whole or in part, except the unredeemed portion
of any Security being redeemed in part, or (c) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may
be exchanged for a Registered Security of that series and like tenor,
provided that such Registered Security shall be simultaneously surrendered
for redemption.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of the same Stated Maturity and aggregate principal amount
and of like tenor and bearing a number not contemporaneously outstanding,
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with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security or coupon; provided, however, that the principal of (and premium,
if any) and any interest on Bearer Securities shall, except as otherwise
provided in Section 10.2, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated
by Section 3.1, 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 by the holder of such mutilated,
destroyed, lost or stolen Security of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series, with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their coupons, if any,
duly issued hereunder.
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 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section
3.1 with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest.
Any interest on any Registered Security of any series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1) or
(2) below:
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(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first- class postage prepaid,
to each Holder of Registered Securities of such series at his
address as it appears 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 so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.8 Persons Deemed Owners.
---------------------
Except as otherwise provided in Section 2.3, prior to due
presentment of a Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
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the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of and any premium and (subject to Sections 3.5 and 3.7) any
interest 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.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. Except as otherwise provided in Section
2.3, the Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as
the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
Section 3.9 Cancellation.
------------
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be destroyed by the
Trustee and the Trustee shall deliver a certification of destruction to the
Company quarterly.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section
3.1 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 3.11 CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance
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may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) 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 as provided in Section 3.5, (ii) Securities and
coupons which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 11.6, and (iv) Securities and
coupons for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of clauses (i)
and (ii) below, any coupons appertaining thereto, not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities and coupons not
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theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7,
the respective obligations of the Company and the Trustee to any
Authenticating Agent under Section 6.14 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 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE V
Remedies
Section 5.1 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 of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
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(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes
due and payable, and continuance of such default for a period of
10 days; or
(3) default in the deposit of any sinking fund or other
payment required pursuant to the terms of a Security of that
Series as established by or pursuant to a Board Resolution as
permitted by Section 3.1(8), when and as due by the terms of a
Security of that series and continuance of such default for a
period of 10 days; 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 has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series, provided
that for purposes of this clause (4) any covenant or agreement on
the part of the Company contained in this Indenture which is not
limited to a series of Securities shall be in respect of all
series of Securities), and continuance of such default or breach
for a period of 90 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 Holder or Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition
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or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, 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
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;
(7) any event which constitutes an "Event of Default"
under the terms governing Securities of that series established as
provided in Section 3.1.
Section 5.2 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 Holder or Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or
rates prescribed therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of
Securities of such series 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.
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Section 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due 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 6.7.
No provision of this Indenture 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 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 5.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities 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 in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities
or coupons, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities and
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coupons 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, as the case may be, for principal and any premium and
interest, respectively; and
THIRD: To the Company.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series or any related
coupons shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(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 that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
-----------------------------------------------------------------
Notwithstanding any other provision in this Indenture,
the Holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of and any
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premium and (subject to Section 3.7) any interest on such Security or
payment of such coupon on the Stated Maturity or Maturities expressed in
such Security or coupon (or, in the case of redemption, 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 5.9 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 provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons in the last paragraph of Section 3.6, 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 of
any Security or coupon to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, 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, and
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(2) 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 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 any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
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 or the Trustee.
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.
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ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 6.2 Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities
of any series, 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 5.1(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. 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 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(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
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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 of its selection
and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(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 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) 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 6.4 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 or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and
coupons and, subject to Sections 6.8 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.
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Section 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
Section 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as shall be agreed to in writing between the Company
and the Trustee 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 upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all 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 the trust or
trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture.
Section 6.9 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
and have an office or agency in New York, New York where Securities may be
presented for payment and for registration of transfer or exchange. If such
Person publishes reports of condition at least annually, pursuant to law or
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to the requirements of said 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. 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 in
accordance with the applicable requirements of 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 the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting 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 for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 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 in accordance with the applicable requirements of Section 6.11,
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 and
accepted appointment in the manner required by Section 6.11, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to 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 to all Holders of Securities of such series in the manner
provided in Section 1.6. 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 case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
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(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 such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in paragraph (a) and (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
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
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by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 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), 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).
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or
State 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 an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Registered Securities of the series with respect
to which such Authenticating Agent will serve, as their names and addresses
appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[Trustee Name]
As Trustee
By:___________________________
As Authenticating Agent
By :__________________________
Authorized Officer
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ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than May 1 and November 1 in
each year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of the preceding April 1 or
October 1, as the case may be; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1
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 7.1 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 privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, 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 any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by ss. 313(a) of the Trust Indenture
Act, the Trustee shall, within 60 days after each May 15 following the date
of this Indenture deliver to Holders a brief report, dated as of such
May 15, which complies with the provisions of such ss. 313(a).
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(b) A copy of each such report shall, at the time of such
transmission to Holders, 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 promptly notify the Trustee when any Securities
are listed on any stock exchange.
Section 7.4 Reports by Company.
------------------
(a) The Company covenants and agrees to file with the
Trustee, copies within 15 days after the Company is required to file the
same with the Commission, of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports, if any, which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports, if any, with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail
to all Holders, as the names and addresses of such Holders appear upon the
Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of information, documents and reports required to
be filed by the Company, if any, pursuant to subsections (a) and (b) of
this Section 7.4 as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms.
---------------------------------------------------
The Company shall not consolidate with or merge into any
other corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation, and the Company shall not
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permit any corporation to consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an
entirety to the Company, unless:
(1) if the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation, the
corporation formed by such consolidation or into which the Company
is merged or the corporation which acquires by conveyance or
transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, shall
be organized and validly 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 any
premium 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 be permitted by this
Indenture, the Company or such successor corporation, as the case
may be, shall take such steps as shall be necessary effectively to
secure the 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 8.2 Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of
the Company into, any other corporation or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 8.1, the successor corporation 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 corporation had been
named as the Company herein; and in the event of any such conveyance,
transfer or lease, the Company (which term shall for this purpose
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mean the corporation named as the Company or any successor corporation
which shall have theretofore become such in the manner prescribed in
Section 8.1) shall be discharged from all liability under this Indenture
and in respect of the Securities and may be dissolved and liquidated.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or
coupons, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any Securities; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit the issuance of Securities in
uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided, that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
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benefit of such provision nor (B) modify the rights of the Holder
of any such Security with respect to such provision or (ii) shall
become effective only when there is no such Security Outstanding; or
(6) [Reserved]; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that
such action pursuant to this clause (9) shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or the rate of accretion of any Original Issue Discount
Security or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or
change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
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(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
5.8 or Section 5.13, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11(b)
and 9.1(8); or
(4) change any obligation of the Company to maintain an
office or agency in the places and for the purpose specified in
Section 10.2.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 9.3 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 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of
and any premium and interest on the Securities of that series in accordance
with the terms of the Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 3.1 with
respect to any series of Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
Section 10.2 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 any
series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. Except as
otherwise specified as contemplated by Section 3.1, if Securities of a
series are issuable as Bearer Securities, the Company will maintain (a) in
the United States, 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
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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;
provided, however, that if the Securities of that series are listed on The
International Stock Exchange, London, 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, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment at an
office maintained by the Trustee in London, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Except as otherwise specified as contemplated by Section
3.1, 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 shall be made at the office of the Company's Paying Agent in the
United States, 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
that 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 one or
more other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
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Section 10.3 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each
due date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and 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
for any series of Securities, it will, prior to each due date of the
principal of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum
to be held as provided by the Trust Indenture Act, and (unless 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 for any series
of Securities other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will (i)
comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (ii) 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
or any premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment 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
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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 in Section
1.6, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any 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
they may have knowledge.
Section 10.5 Existence.
---------
Subject to Article VIII, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect
its 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 Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
Section 10.6 Calculation of Original Issue Discount.
--------------------------------------
The Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued
on Outstanding Securities as of the end of such year.
Section 10.7 Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a
vacancy in the office of the Trustee, will appoint, in the manner provided
in Section 6.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
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ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days, in the event
of a redemption of less than all the Securities of any series, or at least
45 days, in the event of a redemption of all the Securities of any series,
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified
tenor are to be redeemed), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of
that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all of
the Securities of such series and of a specified tenor are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
Section 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner
provided in Section 1.6 to the Holders of Securities to be redeemed not
less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall identify the Securities
to be redeemed (including, subject to Section 3.11, the CUSIP number) and
shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 11.5 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
10.3) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
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Section 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity Date 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 10.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and
surrender of coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities whose Stated Maturity Date is on or prior
to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Sections 3.5 and 3.7.
If any Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 10.2) and, unless otherwise specified as contemplated by Section
3.1, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and any premium
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee
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duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Registered Security or Securities of the same series and of like tenor, 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. If a Book-Entry Security is so
surrendered, such new Security so issued shall be a new Book-Entry
Security.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 3.1 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 cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. 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 12.2 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption), together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) may apply as a credit Securities of a series
which have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in
each case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made pursuant
to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
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Section 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, 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 and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 12.2 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 45
days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.3 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
----------------------------------
If pursuant to Section 3.1 provision is made for either
or both of (a) defeasance of the Securities of a series under Section 13.2
or (b) covenant defeasance of the Securities of a series under Section
13.3, then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article XIII, shall be
applicable to the Securities of such series, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of
such series, elect to have either Section 13.2 (if applicable) or Section
13.3 (if applicable) be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below in this Article
XIII.
Section 13.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities
of such series on and after the date the conditions precedent set forth
below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged thereunder: (A) the
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rights of Holders of Outstanding Securities of such series to receive,
solely from the trust fund described in Section 13.4 as more fully set
forth in such Section, payments of the principal of (and premium and
interest, if any, on) such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 3.4,
3.5, 3.6, 10.2 and 10.3 and such obligations as shall be ancillary thereto,
(C) the rights, powers, trusts, duties, immunities and other provisions in
respect of the Trustee or any Authenticating Agent hereunder and (D) this
Article XIII. Subject to compliance with this Article XIII, the Company may
exercise its option under this Section 13.2 notwithstanding the prior
exercise of its option under Section 13.3 with respect to the Securities of
such series.
Section 13.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be released from its
obligations under Section 8.1 (and any covenant applicable to such
Securities that are determined pursuant to Section 3.1 to be subject to
this provision) and the occurrence of an event specified in Section 5.1(4)
(with respect to Section 8.1) (and any other Event of Default applicable to
such Securities that are determined pursuant to Section 3.1 to be subject
to this provision) shall not be deemed to be an Event of Default with
respect to the Outstanding Securities of such series on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of such series, the Company may omit
to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or clause whether
directly or indirectly by reason of any reference elsewhere herein to any
such Section or clause or by reason of any reference in any such Section or
clause to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to
application of either Section 13.2 or Section 13.3 to the Outstanding
Securities of such series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.9 who shall agree to
comply with the provisions of this Article XIII applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
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discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and
premium and interest, if any on) the Outstanding Securities of
such series on the Maturity of such principal, or premium and
interest, if any. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article
XI, which shall be given effect in applying the foregoing. 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 depositary 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 depositary receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to the Securities of such series shall have occurred and
be continuing (A) on the date of such deposit or (B) insofar as
subsections 5.1(5) and 5.1(6) are concerned, at any time during
the period ending on the 121st day after the date of such deposit
or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of
such deposit (it being understood that the condition in this
condition shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 6.8 or for purposes of
the Trust Indenture Act with respect to any securities of the
Company or (B) result in the trust arising from such deposit to
constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound.
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(5) In the case of an election under Section 13.2, 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 income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 13.3, 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 income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 3.1.
(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 13.2 or the covenant defeasance under
Section 13.3 (as the case may be) have been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------------
Subject to the provisions of the last paragraph of
Section 10.3, 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 13.5, the "Trustee") pursuant
to Section 13.4 in respect of the Outstanding Securities of such series
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (but not including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
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Government Obligations deposited pursuant to Section 13.4 or the principal
and interest received in respect thereof.
Anything herein 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 13.4 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.
Section 13.6 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 13.2 or 13.3 by reason of any order or
judgment or any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations
under the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XIII until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 13.2 or 13.3; provided, however, that if the
Company makes any payment of principal of (and premium, if any) or interest
on any such Security following the reinstatement of its 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.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
ARTICLE XIV
Meetings of Holders of Securities
Section 14.1 Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable as Bearer
Securities, a meeting of Holders of Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
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Section 14.2 Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 13.1, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
1.6, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 13.1, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, the Company or
the Holders of Securities of such series in the amount above specified, as
the case may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
Section 14.3 Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
Section 14.4 Quorum; Action.
--------------
The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall constitute a quorum
for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent
or waiver which this Indenture expressly provides must be given by the
Holders of a greater percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
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case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 13.2(a), except that such
notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a
quorum.
Except as limited by the proviso to Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
the proviso to Section 9.2, any resolution with respect to any consent or
waiver which this Indenture expressly provides must be given by the Holders
of a greater percentage in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of such percentage in principal amount of
the Outstanding Securities of that series; and provided, further, that,
except as limited by the proviso to Section 9.2, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Securities of such series
and the related coupons, whether or not present or represented at the
meeting.
Section 14.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
----------------------------------------------------------
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence
of the right to vote and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
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required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.4 and the appointment of any proxy
shall be proved in the manner specified in Section 1.4 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.4 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided in
Section 13.2(b), in which case the Company or the Holders of Securities of
the series 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 vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal
amount of Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 13.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further
notice.
Section 14.6 Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Securities of such
series or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast
at the meeting. A record, at least in duplicate, of the proceedings of each
meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to 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 given as provided in Section 13.2 and, if applicable,
69
<PAGE>
Section 13.4. Each copy shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one such copy shall
be delivered to the Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
------------------------------------
70
<PAGE>
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.
UNITED AIR LINES, INC.
By
---------------------------------------
Name:
Title:
Attest:
__________________________
[TRUSTEE NAME], as Trustee
By
---------------------------------------
Attest:
__________________________
71
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF ______ )
On the ___ day of _________, ____, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he is the ________________________ of United Air Lines, Inc., one
of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------------------------------
STATE OF _____________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of __________, ____, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he is ________________ of [Trustee Name], one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
---------------------------------
72
<PAGE>
EXHIBIT A TO
THE INDENTURE
FORM OF SECURITY
[Form of Face of Security]
[Insert any legend required by the Internal Revenue Code
and the regulations thereunder.]
[This Security is a Book-Entry Security within the
meaning of the Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. This Security is
exchangeable for Securities registered in the name of a person other than
the Depository or its nominee only in the limited circumstances described
in the Indenture and may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository.]
United Air Lines, Inc.
..........................
No. ......... $ .........
CUSIP No............
United Air Lines, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to ..............., or registered assigns, the principal sum
of........... Dollars on .............. [if the Security is to bear
interest prior to Maturity, insert --, and to pay interest thereon from
......... or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ......... and
......... in each year, commencing ................, at the rate of .....%
per annum [or describe formula to calculate rate], until the principal
hereof is paid or made available for payment [if applicable, insert ....,
and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of .......% per annum on any overdue principal and
premium and on any overdue installment of interest.] The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which
shall be the ........... or ......... (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such
A-1
<PAGE>
interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities of this series not
less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to
Maturity, insert -- The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the rate of ........% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment
to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ........% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the
date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at
the office or agency of the Company maintained for that purpose in [City],
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if
applicable, insert --; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
UNITED AIR LINES, INC.
By:_____________________
Attest:
_________________________
A-3
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of _____________ (herein
called the "Indenture"), between the Company and [Trustee Name], as Trustee
(herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof[, limited in aggregate
principal amount to $_______________].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on ........ in any year commencing with the year
..... and ending with the year ...... through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after ..........., 20..], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): Ifredeemed [on or
before .........., ___%, and if redeemed] during the 12-month period
beginning ............... of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ...... % of the principal
amount, together in the case of any such redemption [if applicable, insert
-- (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
A-4
<PAGE>
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1)
on .............. in any year commencing with the year ..... and ending with
the year ..... through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ........], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning ............. of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to .....% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close
of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior
to ..........., redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption
on .................. in each year beginning with the year ............... and
ending with the year ................ of [not less than $..........
("mandatory sinking fund") and not more than] $............. aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made [in the inverse order in which they
become due].]
A-5
<PAGE>
[If the Security is subject to redemption, insert -- In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If the Security is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of
this series may be declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be equal to -- insert
formula for determining the amount. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if
any, on the Securities of this series shall terminate.]
[The Indenture contains provisions for defeasance at any
time of [the entire indebtedness of this Security or] certain restrictive
covenants and Events of Default with respect to this Security [, in each
case] upon compliance with certain conditions set forth therein.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of
and any premium and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
A-6
<PAGE>
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any
place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same Stated Maturity
and aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $.......... and any
integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis
of [a 360-day year of twelve 30-day months][the actual number of days
elapsed and a 360-day year].
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
the conflict of laws provisions thereof.
A-7
<PAGE>
EXHIBIT B TO
THE INDENTURE
[FORMS OF CERTIFICATION ]
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities (a) [Not
applicable with respect to a Security owned by a financial institution
during the "restricted period" within the meaning of Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations] are not
being acquired by or on behalf of a United States person or any person
inside the United States or, if a beneficial interest in the Securities is
being acquired by or on behalf of a United States person or any person
inside the United States, that such United States person is a financial
institution within the meaning of Section 1.165-12(c)(1)(v) of the United
States Treasury regulations which agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code and the
regulations thereunder, or (b) are being acquired by a financial
institution within the meaning of Section 1.165-12(c)(1)(V) of such
regulations for purposes of resale, but not for purposes of resale,
directly or indirectly, to a person inside the United States or to a United
States person. If the undersigned is a dealer, the undersigned agrees to
obtain a similar certificate from each person entitled to delivery of any
of the above-captioned Securities in bearer form purchased from it;
provided, however, that if the undersigned has actual knowledge that the
information contained in such a certificate is false, the undersigned will
not deliver a Security in temporary or definitive bearer form to the person
who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
As used herein, "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, and "United States" means the
United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
B.1-1
<PAGE>
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated: _________________
[To be dated on or after
_______________, 20__
(the date determined as
provided in the Indenture)]
[Name of Person Entitled to Receive
Security]
--------------------------------
(Authorized Signatory)
Name:
Title:
B.1-2
<PAGE>
EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY BOOK-
ENTRY SECURITY]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $principal amount of the
above-captioned Securities (a) that we have received from each of the
persons appearing in our records as persons entitled to a portion of such
principal amount (our "Qualified Account Holders") a certificate with
respect to such portion substantially in the form attached hereto, and (b)
that we are not submitting herewith for exchange any portion of the
temporary global Security representing the above-captioned Securities
excepted in such certificates.
We further certify that as of the date hereof we have not received
any notification from any of our Qualified Account Holders to the effect
that the statements made by such Qualified Account Holders with respect to
any portion of the part submitted herewith for exchange are no longer true
and cannot be relied upon as of the date hereof.
Dated: _________________
[To be dated no earlier than
the Exchange Date]
[Morgan Guaranty Trust Company of
New York, Brussels Office, as Operator of
the Euroclear System]
[Clearstream Banking]
By:______________________________
B.2-1
<PAGE>
EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities]
We confirm that the interest payable on the Interest Payment Date
on [Insert Date ] will be paid to each of the persons appearing in our
records as being entitled to interest payable on such date from whom we
have received a written certification, dated not earlier than such Interest
Payment Date, substantially in the form attached hereto. We undertake to
retain certificates received from our member organizations in connection
herewith for four years from the end of the calendar year in which such
certificates are received.
We undertake that any interest received by us and not paid as
provided above shall be returned to the Trustee for the above Securities
immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid by such Trustee to the above issuer at
the end of two years after such Interest Payment Date.
Dated: ________________
[To be dated on or after the
relevant Interest Payment Date]
[Morgan Guaranty Trust Company of
New York, Brussels Office, as Operator of
the Euro-clear System]
[Clearstream Banking]
By: ______________________________
B.3-1
<PAGE>
EXHIBIT B.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO OBTAIN
INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities]
This is to certify that as of the Interest Payment Date on [Insert
Date] and except as provided in the third paragraph hereof, none of the
above-captioned Securities held by you for our account was beneficially
owned by a United States person or, if any of such Securities held by you
for our account were beneficially owned by a United States person, such
United States person either provided an Internal Revenue Service Form W-9
with respect to such interest payment or certified with respect to such
interest payment that it was an exempt recipient as defined in Section
1.6049-4(c)(1)(ii) of the United States Treasury regulations.
As used herein, "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, and "United States" means the
United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
This certificate excepts and does not relate to U.S. $_________
principal amount of the above-captioned Securities appearing in your books
as being held for our account as to which we are not able to certify and as
to which we understand interest cannot be credited unless and until we are
able so to certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
B.4-1
<PAGE>
Dated: ________________
[To be dated on or after the
15th day before the relevant
Interest Payment Date]
[Name of Person Entitled to Receive
Interest]
---------------------------------
(Authorized Signatory)
Name:
Title:
[If the withholding agent is not a foreign branch of a financial
institution described in Section 871(h)(4)(B) of the Internal Revenue Code
of 1986, as amended, and a United States person, this certificate must be
signed under penalties of perjury.]
B.4-2
