<PAGE>
As filed with the Securities and Exchange Commission on April 13, 1999.
Registration No. 333 -_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
APEX SILVER MINES LIMITED
(Exact name of registrant as specified in its charter)
Cayman Islands Not Applicable
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
Caledonian House
Jennett Street
George Town, Grand Cayman
Cayman Islands, British West Indies
(345) 949-0050
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
___________________________
Thomas S. Kaplan
Chief Executive Officer
Apex Silver Mines Corporation
1700 Lincoln Street, Suite 3050
Denver, Colorado 80203
(303) 839-5060
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies To:
Patrick J. Dooley, Esq.
James E. Kaye, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
590 Madison Avenue
New York, New York 10022
___________________________
Approximate date of commencement of proposed sale to the public: From time to
time after the Effective Date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box:
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box:
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering:
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering:
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box:
___________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class of Proposed Maximum Aggregate Amount of
Securities to be Registered Offering Price (1)(2) Registration Fee (1)(2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities..............................
Preference Shares(3).........................
Depositary Shares (3)........................ $200,000,000 $55,600
Ordinary Shares (3)..........................
Warrants.....................................
Ordinary Share Purchase Rights(3)............
================================================================================================================================
</TABLE>
(1) In no event will the aggregate initial offering price of the securities
issued under this Registration Statement exceed $200,000,000 or the
equivalent thereof in one or more foreign currencies or composite
currencies, including the euro. For Debt Securities issued with an
original issue discount, the amount to be registered is calculated as the
initial accreted value of such Debt Securities.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
(3) In addition to any preference shares, depositary shares or ordinary shares
that may be issued directly under this Registration Statement, there are
being registered hereunder an indeterminate number of shares of preference
shares, depositary shares or ordinary shares as may be issued upon
conversion or exchange of Debt Securities, preference shares, depositary
shares or Ordinary Share Purchase Rights, as the case may be. No separate
consideration will be received for any shares of preference shares,
depositary shares or ordinary shares so issued upon conversion or exchange.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
SUBJECT TO COMPLETION DATED APRIL 13, 1999
PROSPECTUS
APEX SILVER MINES LIMITED
DEBT SECURITIES
PREFERENCE SHARES
DEPOSITARY SHARES
ORDINARY SHARES
WARRANTS
ORDINARY SHARE PURCHASE RIGHTS
________________
We will provide specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and any supplement carefully before you
invest.
Investing in these securities involves significant risks. See the Risk
Factors section beginning on page 9.
________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ________ ___, 1999.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not an offer to buy these securities in
any state where the offer or sale is not permitted.
We may sell the securities to or through underwriters or dealers, directly
to other purchasers or through agents. Unless otherwise set forth in a
prospectus supplement, (i) any such underwriters may include Salomon Smith
Barney and Merrill Lynch & Co., acting alone or as representatives of a group of
underwriters, and (ii) any such agents may include Salomon Smith Barney and
Merrill Lynch & Co. A prospectus supplement will set forth the names of such
underwriters, dealers or agents, if any, and any applicable commissions or
discounts.
SALOMON SMITH BARNEY MERRILL LYNCH & CO.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Summary............................................. 3
Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed
Charges and Preference Share Dividends............ 6
Where You Can Find More Information................. 6
Forward-Looking Statements.......................... 7
Risk Factors........................................ 9
The Company......................................... 18
Republic of Bolivia................................. 20
Use of Proceeds..................................... 24
Description of the Debt Securities.................. 24
Description of the Preference Shares................ 35
Description of the Depositary Shares................ 38
Description of the Ordinary Shares.................. 41
Description of the Warrants......................... 41
Description of the Ordinary Share Purchase Rights... 42
Plan of Distribution................................ 44
Legal Matters....................................... 45
Experts............................................. 45
</TABLE>
2
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SUMMARY
This summary highlights selected information from this document and may not
contain all of the information that is important to you. To understand the
terms of our securities, you should carefully read this document with the
attached prospectus supplement. Together these documents will give the specific
terms of the securities we are offering. You should also read the documents to
which we have referred you in "Where You Can Find More Information" below for
information on our company and our financial statements. Certain capitalized
terms used in this summary are defined elsewhere in this prospectus.
The Company
Apex Silver Mines Limited (which, together with its subsidiaries, may be
referred to as "we" or "our company") explores and develops silver properties
in South America and Central America. We have one of the largest, most
diversified portfolios of privately owned and controlled silver exploration
properties in the world. Since we were founded in 1993, we have added to our
portfolio approximately 95 non-producing silver and other mineral properties
located primarily in or near the traditional silver-producing regions of
Bolivia, Peru, Chile, Honduras and Mexico.
Since 1993, our exploration efforts have produced our first development
project, the San Cristobal project located in southern Bolivia. Continued
drilling and analysis of the properties relating to the San Cristobal project
established that proven and probable reserves total 259.5 million tonnes of ore
grading 2.0 ounces per tonne of silver, 1.57 percent zinc and 0.55 percent lead
containing 509 million ounces of silver, 4.1 million tonnes of zinc and 1.4
million tonnes of lead.
The Securities We May Offer
This prospectus is part of a registration statement (File No. 333-____)
(the "Registration Statement") that we filed with the Securities and Exchange
Commission utilizing a "shelf" registration process. Under this shelf
registration process, we may offer from time to time any of the following
securities, either separately or in units:
. debt securities;
. preference shares;
. depositary shares;
. ordinary shares;
. warrants; and
. ordinary share purchase rights.
This prospectus provides you with a general description of the securities
which we may offer. Each time we offer securities, we will provide you with a
prospectus supplement that will describe the specific amounts, prices and terms
of the securities being offered. The prospectus supplement may also add, update
or change information contained in this prospectus.
The securities which we may offer may involve a high degree of risk. A
prospectus supplement relating to any security that we offer will describe the
risks relating to each such security. In addition, a prospectus supplement may
also contain additional risk factors relating to our business.
3
<PAGE>
Debt Securities
We may offer general obligations of our company, which may be senior or
subordinated. The senior debt securities and the subordinated debt securities
are together referred to in this prospectus as the "Debt Securities." The
senior debt securities will have the same ranking as all of our other unsecured,
unsubordinated debt. The subordinated debt securities will be entitled to
payment only after payment on our Senior Indebtedness (as described below). In
addition, we are a holding company that conducts all of our operations through
subsidiaries. As a result, claims of the holders of the Debt Securities will
generally have a junior position to claims of creditors of our subsidiaries
(except to the extent that our company is recognized as a creditor of those
subsidiaries) and preferred shareholders of our subsidiaries.
The senior debt securities will be issued under an indenture between our
company and Wilmington Trust Company, as trustee (the "Senior Trustee"). The
subordinated debt securities will be issued under an indenture between our
company and Wilmington Trust FSB, as trustee (the "Subordinated Trustee"). We
have summarized certain general features of the Debt Securities that will be
included in the indentures. We encourage you to read the form of the indentures
(which are exhibits to the Registration Statement) and our recent periodic and
current reports that we file with the SEC. Directions on how you can get copies
of these reports are provided under "Where You Can Find More Information" below.
General Indenture Provisions that Apply to Senior Debt Securities and
Subordinated Debt Securities
. Neither form of indenture limits the amount of Debt Securities that we
may issue thereunder.
. The indentures allow our company under certain circumstances to merge or
consolidate with another company, or to sell all or substantially all of
our assets to another company. If these events occur, the other company
will be required to assume our responsibilities relating to the Debt
Securities, and we will be released from all liabilities and
obligations. There is no restriction on other companies merging into our
company.
. The indentures provide that holders of a majority of the total principal
amount of outstanding Debt Securities of all series (voting as a class)
affected by a proposed change to certain of our obligations may vote to
change certain of our obligations or certain of your rights concerning
the Debt Securities of those series. However, to change the amount or
timing of principal, interest or other payments under a series of Debt
Securities, every holder in that series must consent.
Events of Default
Each indenture provides that each of the following is an Event of Default:
. If we do not pay interest for 30 days after its due date.
. If we do not pay principal or premium when due.
. If we do not make any sinking fund payment for 30 days after its due
date.
. If we continue to breach a covenant for 90 days after notice.
. If a certain bankruptcy or insolvency event occurs.
If an Event of Default occurs with respect to any series of Debt
Securities, the trustee or holders of 25% of the outstanding principal amount of
that series may declare the principal amount of that series
4
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immediately payable or, in the case of a bankruptcy or insolvency event, the
principal amount of all series under the indenture immediately payable. However,
holders of a majority of the principal amount may rescind this action.
General Indenture Provisions that Apply Only to Senior Debt Securities
The prospectus supplement relating to a series of senior debt securities
will describe any material covenants or any special events of default in respect
of such series of senior debt securities.
If we satisfy certain conditions in the indenture relating to a series of
senior debt securities, we may discharge that indenture as it relates to that
series at any time by depositing with the trustee sufficient funds or government
obligations to pay the senior debt securities of that series when due.
General Indenture Provisions that Apply Only to Subordinated Debt Securities
The subordinated debt securities will be subordinated to all "Senior
Indebtedness," which includes all indebtedness for money borrowed by our
company, except indebtedness that is stated to be not superior to, or to have
the same ranking as, the subordinated debt securities. In addition, claims of
our subsidiaries' creditors and preferred shareholders generally will have
priority with respect to the subsidiaries' assets and earnings over the claims
of our creditors, including holders of the subordinated debt securities, even
though those obligations may not constitute Senior Indebtedness. The
subordinated debt securities, therefore, will be effectively subordinated to
creditors (including trade creditors) and preferred shareholders of our
subsidiaries with regard to the assets of such subsidiaries.
The prospectus supplement relating to a series of subordinated debt
securities will describe any material covenants or special events of default in
respect of such series of subordinated debt securities.
Preference Shares and Depositary Shares
We may issue our preference shares, par value $0.01 per share, in one or
more classes or series. Our Board of Directors will determine for the
preference shares, the dividend, voting, redemption, sinking fund, conversion,
liquidation preference, relative priority and other rights of the class or
series being offered and the terms and conditions relating to its offering and
sale at the time of the offer and sale. We may also issue fractional shares of
preference shares that will be represented by depositary shares and depositary
receipts.
Ordinary Shares
We may issue our ordinary shares, par value $0.01 per share. Holders of
ordinary shares are entitled to receive dividends when declared by the Board of
Directors (subject to the rights of holders of preference shares). Each holder
of ordinary shares is entitled to one vote per share. The holders of ordinary
shares have no preemptive rights or cumulative voting rights.
Warrants
We may issue warrants for the purchase of preference shares or ordinary
shares. We may issue warrants independently or together with other securities.
A prospectus supplement relating to the warrants will describe the terms of the
warrants, including the following: the title, number and offering price of the
warrants; the terms on which they may be issued; and the number, designation and
description
5
<PAGE>
of the ordinary shares or preference shares that may be purchased upon exercise
of the warrants and the price at which such shares may be purchased.
Ordinary Share Purchase Rights
We may issue rights to purchase ordinary shares (the "Ordinary Share
Purchase Rights"). We may issue Ordinary Share Purchase Rights independently or
together with other securities. Our Board of Directors will determine for the
Ordinary Share Purchase Rights, the number, the exercise price, the terms on
which they may be issued, the extent of transferability, the date of
commencement and the date of expiration.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERENCE SHARE DIVIDENDS
Our company is a mining exploration and development company that holds a
portfolio of silver exploration and development properties in South America and
Central America. None of these properties are in production, and, consequently,
our company has no current operating income or cash flow. Accordingly, no
ratios are shown for any of the years ended December 31, 1994, 1995, 1996, 1997,
and 1998 as earnings were not sufficient to cover fixed charges. As of the date
of this prospectus, we have not issued any preference shares. As a result of
the net losses incurred for the period ended December 31, 1994 and for each of
the years ended December 31, 1995, 1996, 1997 and 1998, earnings were inadequate
to cover fixed charges by $0.2 million, $1.9 million, $11.7 million, $15.0
million and $11.0 million, respectively.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov.
The SEC allows our company to "incorporate by reference" into this
prospectus the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed:
. Annual Report on Form 10-K for the year ended December 31, 1998; and
. The description of the ordinary shares and other classes or series of
shares contained under the caption "Description of Ordinary Shares" in
our registration statement on Form S-1, as amended (File No. 333-34685),
and incorporated by reference into the Registration Statement on Form 8-
A under the Securities Exchange Act of 1934, as amended, of our company
filed with the SEC on November 18, 1997.
You may request a copy of these filings at no cost, by writing to or
telephoning us at the following address:
6
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Linda Wilson
Vice President Investor Relations
Apex Silver Mines Corporation
1700 Lincoln Street, Suite 3050
Denver, Colorado 80203
(303) 839-5060
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the document.
FORWARD-LOOKING STATEMENTS
Some information contained in this prospectus or any prospectus supplement,
or incorporated by reference into this prospectus or any prospectus supplement
may contain forward-looking statements. These statements include comments
regarding mine development and construction plans, costs, grade, production and
recovery rates, permitting, financing needs, the availability of financing on
acceptable terms, the timing of engineering studies and environmental
permitting, and the markets for silver, zinc and lead. The use of any of the
words "anticipate", "continue," "estimate," "expect," "may," "will," "project,"
"should," "believe" and similar expressions are intended to identify
uncertainties. We believe the expectations reflected in those forward-looking
statements are reasonable. However, we cannot assure you that such expectations
will prove to be correct. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of the risk factors
set forth below and other factors set forth in, or incorporated by reference
into, this prospectus or any prospectus supplement:
. worldwide economic and political events affecting the supply of and
demand for silver, zinc and lead;
. volatility in market prices for silver, zinc and lead;
. financial market conditions, and the availability of financing on terms
acceptable to our company;
. uncertainties associated with developing a new mine, including potential
cost overruns and the unreliability of estimates in early stages of mine
development;
. variations in ore grade and other characteristics affecting mining,
crushing, milling and smelting operations and mineral recoveries;
. geological, technical, permitting, mining and processing problems;
. the availability and timing of acceptable arrangements for power,
transportation, water and smelting;
. variations in smelting operations and capacity;
. the availability of experienced employees; and
. the factors discussed under "Risk Factors."
7
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Many of those factors are beyond our ability to control or predict.
You should not unduly rely on these forward-looking statements. These
statements speak only as of the date of this prospectus or the date of any
prospectus supplement. Except as required by law, we are not obligated to
publicly release any revisions to these forward-looking statements to reflect
future events or developments. All subsequent written and oral forward-looking
statements attributable to our company and persons acting on our behalf are
qualified in their entirety by the cautionary statements contained in this
section and elsewhere in this prospectus and any prospectus supplement.
8
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RISK FACTORS
Prospective purchasers of our securities should consider carefully, in
addition to the other information contained in, or incorporated by reference
into, this prospectus or any prospectus supplement, the following risk factors:
No Production History -- we have not mined any silver or other metals.
Our company has no history of producing silver or other metals. The
development of our economically feasible properties will require the
construction or rehabilitation and operation of mines, processing plants and
related infrastructure. As a result, we are subject to all of the risks
associated with establishing new mining operations and business enterprises.
There can be no assurance that we will successfully establish mining operations
or profitably produce silver or other metals at any of our properties.
History of Losses -- we expect losses to continue for at least the next three
years.
As an exploration and development company that has no production history,
we have incurred losses since our inception, and we expect to continue to incur
additional losses for at least the next three years. As of December 31, 1998,
we had an accumulated deficit of $39.8 million. There can be no assurance that
we will achieve or sustain profitability in the future.
Potential Inaccuracy of the Reserves and Other Mineralization Estimates
Unless otherwise indicated, reserves and other mineralization figures
presented in our filings with the Securities and Exchange Commission, press
releases and other public statements that may be made from time to time are
based on estimates of contained silver and other metals made by independent
geologists and/or our own personnel. These estimates are imprecise and depend
on geological interpretation and statistical inferences drawn from drilling and
sampling which may prove to be unreliable. There can be no assurance that:
. such estimates will be accurate;
. reserves and other mineralization figures will be accurate; or
. reserves or mineralization could be mined and processed profitably.
Since we have not commenced production on any of our properties, reserves
and other mineralization estimates for these properties may require adjustments
or downward revisions based on actual production experience. Extended declines
in market prices for silver, zinc and lead may render portions of our reserves
uneconomic and result in reduced reported reserves. Any material reductions in
estimates of our reserves and other mineralization, or of our ability to extract
such reserves or mineralization, could have a material adverse effect on our
results of operations and financial condition.
We have not established the presence of any proven or probable reserves at
any of our mineral properties other than the San Cristobal project. Although
independent parties have prepared conceptual studies with respect to certain of
our other properties using data and assumptions that we have provided, these
studies involve assumptions and projections based on a level of data
insufficient to establish the presence of proven or probable reserves. There
can be no assurance that subsequent testing or future feasibility studies will
establish additional reserves at our properties. The failure to establish
additional reserves could restrict our ability to successfully implement our
strategies for long term growth beyond the San Cristobal project.
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San Cristobal Project Risks -- the completion of the San Cristobal project is
subject to additional risks as detailed below.
We plan to complete the development of the San Cristobal project and
commence production operations by late 2001. However, there can be no assurance
that:
. the development of the San Cristobal project will be commenced or
completed on a timely basis, if at all;
. the resulting operations will achieve the anticipated production volume;
or
. the construction costs and ongoing operating costs associated with the
development of the San Cristobal project will not be higher than
anticipated.
If the actual cost to complete the development of the San Cristobal project
is significantly higher than expected, there can be no assurance that we will
have enough funds to cover such costs or that we would be able to obtain
alternative sources of financing to cover such costs. Failure to obtain
necessary project financing on acceptable terms, to commence or complete the
development of the San Cristobal project on a timely basis, to achieve
anticipated production capacity, and unexpected cost increases could have a
material adverse effect on our future results of operations and financial
condition.
The proximity of the town of San Cristobal may adversely affect our ability
to efficiently mine the San Cristobal project. We are in the process of
relocating the local population of approximately 350 persons to a new village
that we are currently constructing. There can be no assurance that we will
successfully complete this relocation program within the time period required by
our development plans, if at all.
The successful development of the San Cristobal project is subject to the
other risk factors described herein.
Dependence on a Single Mining Project -- our principal asset is the San
Cristobal project.
We anticipate that the majority, if not all, of our revenues and profits
for the next few years and beyond will be derived from the sale of metals mined
at the San Cristobal project. Therefore, if we are unable to complete and
successfully mine the San Cristobal project in a timely manner, our ability to
generate revenue and profits would be materially adversely affected.
Management of Growth -- our success will depend on our ability to manage our
growth.
We anticipate that as we bring our mineral properties into production and
as we acquire additional mineral rights, we will experience significant growth
in our operations. We expect this growth to create new positions and
responsibilities for management personnel and increase demands on our operating
and financial systems. There can be no assurance that we will successfully meet
such demands and manage our anticipated growth.
Volatility of Metals Prices -- our profitability will be affected by changes in
the prices of metals.
Our profitability and long-term viability depend, in large part, on the
market price of silver, zinc, lead and other metals. The market prices for such
metals are volatile and are affected by numerous factors beyond our control,
including:
10
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. global or regional consumption patterns;
. supply of, and demand for, silver, zinc, lead and other metals;
. speculative activities;
. expectations for inflation; and
. political and economic conditions.
The aggregate effect of these factors on metals prices is impossible for
our company to predict. A decrease in metals prices could adversely affect our
ability to finance the development of the San Cristobal project and the
exploration and development of our other properties, which would have a material
adverse effect on our financial condition and results of operations.
Hedging Risks -- we may lose money through our hedging program.
We have commenced a limited preliminary program to hedge against commodity
and base metals price risks. We anticipate that as we bring our mineral
properties into production and we begin to generate revenue, we may utilize
various price hedging techniques to mitigate some of the risks associated with
fluctuations in the prices of the metals we produce. We may also engage in
activities to hedge the risk of exposure to currency and interest rate
fluctuations as a result of our operations in several foreign countries.
Further, terms of certain of our financing arrangements may require us to hedge
against these risks.
There can be no assurance that we will be able to successfully hedge
against price, currency and interest rate fluctuations. In addition, our
ability to hedge against zinc and lead price risk in a timely manner may be
adversely affected by the smaller volume of transactions in both the zinc and
lead markets. Further, there can be no assurance that the use of hedging
techniques will always be to our benefit. Hedging instruments which protect
against market price volatility may prevent us from realizing the benefit from
subsequent increases in market prices with respect to covered production. Such
limitation would limit our revenues and profits. Hedging contracts are also
subject to the risk that the other party may be unable or unwilling to perform
its obligations under such contracts. Any significant nonperformance could have
a material adverse effect on our financial condition and results of operations.
Acquisition, Exploration and Development Risks -- the acquisition, exploration
and development of mineral properties is highly speculative in nature and
frequently non-productive.
Our future growth and profitability will depend, in part, on our ability to
identify and acquire additional mineral rights, and on the costs and results of
our continued exploration and development programs. Our strategy is to expand
our reserves through a broad program of exploration. Mineral exploration is
highly speculative in nature and is frequently non-productive. If we discover
mineralization, it usually takes several years from the initial phases of
exploration until production is possible. During this time, the economic
feasibility of production may change. Substantial expenditures are required to:
. establish ore reserves through drilling and metallurgical and other
testing techniques;
. determine metal content and metallurgical processes to extract metal
from the ore; and
. construct, renovate or expand mining and processing facilities.
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As a result of these uncertainties, there can be no assurance that we will
successfully acquire additional mineral rights or that our exploration programs
will result in new proven and probable reserves or in mineral production.
None of our mineral properties, including the San Cristobal project, has an
operating history upon which we can base estimates of future cash operating
costs. Estimates of reserves and operating costs, particularly for development
projects like the San Cristobal project, are based to a large extent upon
interpreting geologic data obtained from drill holes and other sampling
techniques and on feasibility studies. Feasibility studies derive estimates of
cash operating costs based upon, among other things:
. anticipated tonnage and grades of ore to be mined and processed;
. anticipated metallurgical characteristics of the ore;
. configuration of the ore body;
. expected recovery rates of silver and other metals from the ore;
. expected presence or absence in the ore of metals that are deleterious
to metals recovery;
. the cash operating costs of comparable facilities and equipment; and
. anticipated climatic conditions.
Actual cash operating costs, production and economic returns may differ
significantly from those anticipated by our studies and estimates.
In addition, there are a number of uncertainties inherent in the
development and construction of any new mine, including:
. the timing and cost, which can be considerable, of the construction of
mining and processing facilities;
. the availability and cost of skilled labor, power, water and
transportation facilities;
. the availability and cost of appropriate smelting and refining
arrangements;
. the need to obtain necessary environmental and other governmental
permits, and the timing of those permits; and
. the need to obtain funds to finance construction and development
activities.
The costs, timing and complexities of mine construction and development are
increased by the remote location of many mining properties, like the San
Cristobal project. It is common in new mining operations to experience
unexpected problems and delays during mine start-up. In addition, delays in the
commencement of mineral production often occur.
Thus, there can be no assurance that minerals will be discovered, in
sufficient quantities to justify commercial operations in any of our company's
properties, other than the San Cristobal project, or that the funds required for
mine construction and development can be obtained. Accordingly, there is no
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assurance that our future development activities or exploration efforts will
result in profitable mining operations.
Title to Our Mineral Properties May be Challenged
Our policy is to seek to confirm the validity of our rights to title to, or
contract rights with respect to, each mineral property in which we have a
material interest. However, we cannot guarantee that title to our properties
will not be challenged or impugned. Title insurance generally is not available,
and our ability to ensure that we have obtained secure claim to individual
mineral properties or mining concessions may be severely constrained. We have
not conducted surveys of all of the claims in which we hold direct or indirect
interests and, therefore, the precise area and location of such claims may be in
doubt. Accordingly, our mineral properties may be subject to prior unregistered
agreements, transfers or claims, and title may be affected by, among other
things, undetected defects. In addition, we may be unable to operate our
properties as permitted or to enforce our rights with respect to such
properties.
We derive the rights to certain of our mineral properties, including
certain of our principal properties at the San Cristobal project, from
leaseholds or purchase option agreements which require the payment of rent or
other installment fees. If we fail to make such payments when they are due, our
rights to such property may lapse. There can be no assurance that we will
always make payments by the requisite payment dates. In addition, certain of
our contracts with respect to our mineral properties require development or
production schedules. There can be no assurance that we will be able to meet
any or all of such development or production schedules. In addition, our
ability to transfer or sell our rights to certain mineral properties requires
governmental approvals or third party consents, which may not be granted.
Mining Risks and Limits of Insurance Coverage -- we cannot insure against all of
the risks associated with mining.
The business of mining is subject to a number of risks and hazards,
including:
. adverse environmental effects;
. industrial accidents;
. labor disputes;
. technical difficulties due to unusual or unexpected geologic formations;
. cave-ins; and
. flooding and periodic interruptions due to inclement or hazardous
weather conditions.
Such risks can result in, among other things:
. damage to, and destruction of, mineral properties or production
facilities;
. personal injury;
. environmental damage;
. delays in mining;
. monetary losses; and
. legal liability.
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Although we maintain, and intend to continue to maintain, insurance with
respect to our operations and mineral properties within ranges of coverage
consistent with industry practice, there can be no assurance that such insurance
will be available at economically feasible premiums. Insurance against
environmental risks (including potential liability for pollution or other
disturbances resulting from mining exploration and production) is not generally
available. In addition, certain risks associated with developing and producing
silver, zinc, lead and other metals may be excluded from coverage or may result
in liabilities which exceed policy limits. Further, we may elect to not seek
coverage for certain risks. The occurrence of an event that is not fully
covered, or covered at all, by insurance, could have a material adverse effect
on our financial condition and results of operations.
Foreign Operations -- we conduct all of our exploration activities in countries
with developing economies and are subject to the risks of political and economic
instability associated with these countries.
We currently conduct exploration activities in countries with developing
economies including Bolivia, Chile, Honduras, Mexico and Peru in Latin America.
These countries and other emerging markets in which we may conduct operations
have from time to time experienced economic or political instability. We may be
materially adversely affected by risks associated with conducting operations in
countries with developing economies, including:
. political instability and violence;
. war and civil disturbance;
. expropriation or nationalization;
. changing fiscal regimes;
. fluctuations in currency exchange rates;
. high rates of inflation;
. underdeveloped industrial and economic infrastructure; and
. unenforceability of contractual rights.
Changes in mining or investment policies or shifts in the prevailing
political climate in any of the countries in which we conduct exploration and
development activities could adversely affect our business. Our operations may
be affected in varying degrees by government regulations with respect to, among
other things:
. production restrictions;
. price controls;
. export controls;
. income and other taxes;
. maintenance of claims;
. environmental legislation;
. foreign ownership restrictions;
. foreign exchange and currency controls;
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. labor;
. welfare benefit policies;
. land use;
. land claims of local residents;
. water use; and
. mine safety.
We cannot accurately predict the effect of these factors. In addition,
legislation in the United States regulating foreign trade, investment and
taxation could have a material adverse effect on our financial condition and
results of operations.
Government Regulation of Environmental Matters -- our exploration activities are
subject to foreign environmental laws and regulations which may materially
adversely affect our future operations.
Our commercial production and mineral exploration and development are
subject to foreign laws and regulations which control the mining and exploration
of mineral properties and their potential effects upon the environment. These
laws and regulations are comprehensive and deal with matters such as air and
water quality, mine reclamation, waste handling and disposal, the protection of
certain species and the preservation of certain lands. These laws and
regulations will require our company to acquire permits and other authorizations
for certain activities. There can be no assurance that we will be able to
acquire such permits or authorizations on a timely basis, if at all. Any delay
in acquiring a permit or authorization could increase the development cost of a
project and may delay the commencement of production.
Environmental legislation is evolving in a manner which will likely require
stricter standards and enforcement, increased fines and penalties for non-
compliance, more stringent environmental assessments of proposed projects and a
heightened degree of responsibility for companies and their officers, directors
and employees. Many aspects of mine operation and reclamation require permits
from various regulatory authorities. We cannot predict what environmental
legislation or regulations will be enacted or adopted in the future or how
future laws and regulations will be administered or interpreted. Compliance
with more stringent laws and regulations, as well as potentially more vigorous
enforcement policies or regulatory agencies or stricter interpretation of
existing laws, may (1) necessitate significant capital outlays, (2) cause us to
delay, terminate or otherwise change our intended activities with respect to one
or more projects and (3) materially adversely affect our future operations.
Our preliminary analysis of the mining activities conducted by the previous
owner and operator of the Toldos mine at the San Cristobal project indicates
that low-level effluents from the site may be draining into a seasonal stream
which flows into the Rio Grande, which flows into the Salar de Uyuni, a salt
lake to the north of the San Cristobal project. Pursuant to the recently
enacted Bolivian mining code, mining companies are not liable for identified
pre-existing conditions. We expect to improve the environmental situation which
may currently exist at the site. We do not expect any such efforts to have a
material adverse effect on our proposed operations at the San Cristobal project.
We may be unaware of existing environmental conditions on our other mineral
properties which have been caused by previous or existing owners or operators of
the properties. We have not sought complete environmental analyses of our
mineral properties and have not conducted comprehensive reviews of the
environmental laws and regulations in every jurisdiction in which we own or
control mineral properties. To the extent we are subject to environmental
requirements or liabilities, the cost of compliance with such requirements and
satisfaction of such liabilities would reduce our net cash flow and
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could have a material adverse effect on our financial condition and results of
operations. If we are unable to fund fully the cost of remediation of any
environmental condition, we may be required to suspend operations or enter into
interim compliance measures pending completion of the required remediation.
Competition -- we compete against larger and more experienced companies.
The mining industry is intensely competitive. We compete with many
companies that have greater financial resources, operational experience and
technical capabilities than we have. Competition in the mining business could
adversely affect our ability to attract requisite capital funding or acquire
suitable producing properties or prospects for mineral exploration in the
future. We may encounter increasing competition from other mining companies in
our efforts to acquire mineral properties and to hire experienced mining
professionals.
Holding Company Structure Risks -- our ability to obtain dividends or other
distributions from our subsidiaries may be subject to restrictions imposed by
law and foreign currency exchange regulations.
We conduct, and will continue to conduct, all of our operations through
subsidiaries. Our ability to obtain dividends or other distributions from our
subsidiaries may be subject to restrictions on dividends or repatriation of
earnings under applicable local law, monetary transfer restrictions and foreign
currency exchange regulations in the jurisdictions in which the subsidiaries
operate. Our subsidiaries' ability to pay dividends or make other distributions
to our company is also subject to their having sufficient funds to do so. If
our subsidiaries are unable to pay dividends or make other distributions, our
growth may be inhibited unless we are able to obtain additional debt or equity
financing on acceptable terms. In the event of a subsidiary's liquidation, we
may lose all or a portion of our investment in such subsidiary.
Requirement of External Financing -- we may not be able to raise the funds
necessary to explore and develop our mineral properties.
We will need external financing to develop and construct the San Cristobal
project and to fund the exploration and development of our other mineral
properties. Sources of such external financing may include bank borrowings and
future debt and equity offerings. There can be no assurance that financing will
be available on acceptable terms, or at all. The failure to obtain such
financing could have a material adverse effect on our growth strategy and our
results of operations and financial condition. The mineral properties that we
are likely to develop are expected to require significant capital expenditures.
There can be no assurance that we will be able to secure the financing necessary
to retain our rights to, or to begin or sustain, production at our mineral
properties.
Dependence on Key Personnel
We are dependent on the services of certain key executives including our
chairman and our chief operating officer. The loss of these persons, other key
executives or personnel, or our inability to attract and retain additional
highly skilled employees required for expanding our activities, may have a
material adverse effect on our business or future operations. In addition, we
do not intend to maintain "key-man" life insurance on any of our executive
officers or other personnel.
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Substantial Control By Directors and Officers, and Certain Shareholders -- the
substantial control of our company by the directors and officers, and certain
shareholders may have a significant effect in delaying, deferring or preventing
a change in control of our company or other events which could be of benefit to
our other shareholders.
As of December 31, 1998, Thomas S. Kaplan and the other directors of our
company and officers of Apex Silver Mines Corporation, together with members of
their families and entities that may be deemed to be affiliates of or related to
such persons or entities, beneficially owned approximately 34% of the
outstanding shares of our company (including approximately 1.4% owned by Paul
Soros and his affiliates and approximately 6.7% owned by Eduardo Elsztain and
his affiliates). In addition, as of December 31, 1998, Quantum Industrial
Partners LDC and Geosor Corporation collectively owned approximately 17% of the
outstanding shares of our company. George Soros, by virtue of his ownership of
Geosor Corporation and his position with Soros Fund Management LLC, an
investment advisor to Quantum Industrial Partners LDC, may have the power to
direct the way that these shares are voted. Such a high level of ownership by
such persons may have a significant effect in delaying, deferring or preventing
a change in control of our company or other events which could be of benefit to
our other shareholders.
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THE COMPANY
Apex Silver Mines Limited explores and develops silver properties in South
America and Central America. We have one of the largest, most diversified
portfolios of privately owned and controlled silver exploration properties in
the world. Since we were founded in 1993, we have added to our portfolio
approximately 95 non-producing silver and other mineral properties located
primarily in or near the traditional silver-producing regions of Bolivia, Peru,
Chile, Honduras and Mexico.
Since 1993, our exploration efforts have produced our first development
project, the San Cristobal project located in southern Bolivia. Continued
drilling and analysis of the properties relating to the San Cristobal project
established that proven and probable reserves total 259.5 million tonnes of ore
grading 2.0 ounces per tonne of silver, 1.57 percent zinc and 0.55 percent lead
containing 509 million ounces of silver, 4.1 million tonnes of zinc and 1.4
million tonnes of lead.
We are currently conducting a final, bankable feasibility study on the San
Cristobal project, which we expect to complete in mid-year 1999. We anticipate
developing a large scale, open pit mining operation with low stripping ratios,
which we believe will be capable of processing 40,000 tonnes of ore per day
using conventional mining and processing technologies.
In addition, exploration efforts at other properties in Bolivia, Mexico and
Peru indicate the presence of sufficient mineralization to warrant additional
exploration and evaluation to determine the potential for future development.
Business Strategy
We are one of a limited number of mining companies which focuses on silver
exploration, development and production. Our strategy is to capitalize on our
sizeable portfolio of silver exploration properties in order to achieve long-
term profits and growth and to enhance shareholder value.
Although our primary focus is on mining silver, we intend to produce other
metals associated with our silver deposits if economically practicable, such as
zinc, lead, copper and gold. Our company is managed by a team of seasoned
mining professionals with significant experience in the identification and
exploration of mineral properties, as well as the construction, development and
operation of large scale, open pit and underground, precious and base metals
mining operations.
The principal elements of our business strategy are to:
. proceed to develop the San Cristobal project into a large scale open pit
mining operation;
. continue to explore and evaluate the Cobrizos silver property in
southern Bolivia and the Platosa silver and zinc property in northern
Mexico;
. continue to explore and develop other properties which we believe are
most likely to contain significant amounts of silver and divesting those
properties that are not of continuing interest; and
. identify and acquire additional mining and mineral properties that we
believe contain significant amounts of silver or have exploration
potential.
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History, Address, Principal Office
We conduct substantially all of our operations through Apex Silver Mines
(formerly Apex Silver Mines LDC), our wholly owned subsidiary, and through the
subsidiaries of Apex Silver Mines. Our company's material assets consist
exclusively of the shares of Apex Silver Mines.
Our company was formed under the laws of the Cayman Islands and maintains
its registered office at Caledonian House, Jennett Street, George Town, Grand
Cayman, Cayman Islands, British West Indies.
We have a contract with Apex Silver Mines Corporation, a wholly owned
subsidiary of Apex Silver Mines, pursuant to which Apex Silver Mines Corporation
provides our company with certain management services. Apex Silver Mines
Corporation maintains its principal office at 1700 Lincoln Street, Suite 3050,
Denver, Colorado 80203.
Enforceability of Civil Liabilities Under United States Laws
Our company is a Cayman Islands exempted company and some of our directors
reside in jurisdictions outside of the United States. At any one time, all or a
substantial portion of our assets and directors are or may be located in
jurisdictions outside of the United States. Therefore, it could be difficult
for investors to effect within the United States service of process on our
company or any of the directors who reside outside the United States. Further,
it could be difficult to recover against our company or such directors judgments
of courts in the United States, including judgments based upon civil liability
under U.S. federal securities laws and similar state laws. Notwithstanding the
foregoing, our company has irrevocably agreed that it may be served with process
with respect to actions based on offers of the securities offered by this
prospectus in the United States by serving Apex Silver Mines Corporation, 1700
Lincoln Street, Suite 3050, Denver, Colorado 80203, its U.S. agent appointed for
that purpose.
W.S. Walker & Company, our Cayman Islands counsel, has advised our company
that there may be circumstances where the courts of the Cayman Islands would not
enforce:
. judgments of U.S. courts obtained in actions against our company or
directors of our company that are not resident within the United States
that are based upon the civil liability provisions for the U.S. federal
securities laws and similar state laws; or
. original actions brought in the Cayman Islands against our company or
such persons based solely upon U.S. federal securities laws.
There is no treaty in effect between the United States and the Cayman
Islands providing for such enforcement. There are grounds upon which Cayman
Islands courts may not enforce judgments of U.S. courts. In addition, some
remedies that are available under the laws of U.S. jurisdictions, including
certain remedies under U.S. federal securities laws, may not be allowed in
Cayman Islands courts as being contrary to public policy.
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REPUBLIC OF BOLIVIA
We have compiled the following information from governmental and private
publications.
General Information
Bolivia is situated in central South America and is bordered by Peru,
Brazil, Paraguay, Argentina and Chile. It has an area of 1,098,581 square
kilometers and a population of approximately 8.1 million people. Bolivia's
official and most widely spoken language is Spanish, but over 70 percent of the
population is either native Aymara or Quechua Indian. Sucre is the capital city
of Bolivia. La Paz is the seat of government and, with a population of over one
million people, the largest city in Bolivia. La Paz is situated on the
Altiplano, the high plateau which separates the eastern and western ranges of
the Andes. The land in this part of the country is largely semi-desert plains
bordered by steep, rugged mountains. The eastern portion of the country consists
of sparsely populated low-lands bordering the Brazilian Amazon basin where
temperate and tropical forests dominate. Santa Cruz is the principal city of the
low country with a population of approximately 1,000,000.
The government of Bolivia consists of a directly elected president and a
bicameral congress. Since the military government stepped down in 1982, Bolivia
has maintained a stable democratic system with elections every four years. The
current president, Hugo Banzer, was elected by the congress on August 5, 1997,
after none of the presidential candidates succeeded in winning a majority of the
votes in the general election held in June 1997.
Economy
The Bolivian economy has experienced continuous growth and relatively low,
stable inflation in recent years. This economic performance is generally
ascribed to the deregulation of key sectors of the economy, including oil and
gas, communications, transportation and finance, and to foreign direct
investment which has occurred as part of the recent privatization of formerly
government-owned electricity, telecommunications, railways, aviation and oil and
gas companies. The country's privatization program has involved (1) the sale of
shares in government-owned entities in exchange for capital contributions to the
privatized entities, and (2) the contribution of government-owned shares in such
privatized entities to trust funds established on behalf of all Bolivians over
the age of 21 at the end of 1995. In connection with this program, we have
entered into joint venture agreements with the government mining company,
Comibol, with respect to two properties. Summary information on the Bolivian
economy is set forth in the table below.
<TABLE>
<CAPTION>
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
GDP Growth ............................................ 5.0% 3.7% 4.0% 4.2% 4.7%
GDP per Capita......................................... $ 756 $ 812 $ 860 $1,005 $1,076
Inflation.............................................. 8.5% 12.6% 7.9% 6.73% 4.39%
Pubic Section Deficit (non-financial) as
% of GDP............................................... 3.2% 2.3% 2.1% 3.6% 4%
Exports FOB (in millions).............................. $1,124 $1,181 $ 1326 $1,272 $1,206
Imports CIF (in millions).............................. $1,196 $1,433 $1,635 $1,906 $2,083
Current Account Balance (% GDP)........................ 3.6% 5.0% 5.2% -8% -10%
Total Investment (in millions)......................... $ 794 $ 898 $ 540 $1,578 $1,754
Share of GDP (%)....................................... 13.3% 13.7% 7.6% 19.8% 20.5%
Public Investment (in millions)........................ $ 481 $ 505 $ 524 $ 582 $ 539
Share of GDP (%)....................................... $ 481 $ 505 7.6% 7.3% 6.3%
Private Investment (in millions)....................... $ 288 $ 373 $ 632 $ 996 $1,215
Share of GDP (%)....................................... 4.8% 5.7% 8.9% 12.5% 14.2%
</TABLE>
Source: Latin Finance
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The official monetary unit of Bolivia is the boliviano, which was
introduced in January 1987 following the adoption in 1985 of a broad based
reform program known as the "New Economic Policy." In the mid-1980s, prior to
the New Economic Policy, Bolivia suffered from hyperinflation, declining foreign
investment, growing balance of payments deficits and a foreign exchange shortage
fueled in part by an increasing disparity between the official and unofficial
exchange rates. The New Economic Policy removed restrictions on exports and
imports, ended most price controls and subsidies, instituted a freeze on public
sector wages and subjected the public sector to rigorous cost cutting. By 1986,
inflation was under control and the International Monetary Fund resumed stand-by
assistance. During the period of the New Economic Policy, the gap between the
official exchange rate and the parallel unofficial rate was bridged. On
December 31, 1998, the exchange rate was 5.65 bolivianos to one U.S. dollar
compared to the exchange rate on December 31, 1997 of 5.37 bolivianos to one
U.S. dollar. Over the past year the boliviano has shown a tendency to
depreciate approximately US$0.01 every 13 days; however this pace has
accelerated recently in response to the devaluation of the Brazilian currency.
The boliviano is freely convertible in Bolivia at a single, public exchange
rate established by twice-weekly auctions held by the Bolivian Central Bank.
Foreign Investment and Tax
Since the New Economic Policy, most restrictions on trade have been removed
or are in the process of being phased out. Currently, import levies stand at ten
percent for all items except capital goods, which are subject to a five percent
levy. In March 1991, a new export code introduced further measures to liberalize
trade. In order to prevent transfer pricing and other tax avoidance mechanisms,
almost all foreign trade transactions require the filing of an aviso de
conformidad describing the terms of the underlying transactions.
The 1990 Investment Law provides for unrestricted repatriation of capital,
freedom to import goods and services, equality under the law between foreign and
domestic companies, and the creation of "free trade zones."
Mining companies in Bolivia are subject to a 25 percent income tax. Taxable
income is determined in accordance with Bolivian generally accepted accounting
principles.
Under the new Bolivian Mining Code, which came into effect on March 17,
1997, there is Complementary Mining Tax applicable to whomever carries out
mining activities, which would be payable if greater than the Bolivian income
tax. Mining activities are defined to include: prospecting and exploration;
mining or extracting minerals or metals; concentrating mine products; smelting
and refining; and marketing of minerals and metals. The Complimentary Mining Tax
is calculated by applying an aliquot to the taxable base. The aliquot of the
Complementary Mining Tax is a variable percentage (which fluctuates between
three percent and seven percent for precious stones and metals and between one
percent and five percent for other metallic minerals) indexed to the official
U.S. dollar market price for the relevant metal or mineral. The taxable base is
construed as the amount that results from multiplying the weight of the fine
content of the mineral or metal by its official U.S. dollar market price. This
tax is creditable against corporate income and is, in effect, a minimum tax on
mining companies. Manufacturing or processing involving minerals is not subject
to the Complementary Mining Tax.
Bolivian source income, including dividends, interest, management fees and
expenses charged to a Bolivian company by foreign affiliates, is subject to a
withholding tax of 12.5 percent, as is any of these payments when made to third
parties.
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Operating losses (as adjusted for inflation) may be carried forward and
deducted from taxable income indefinitely. However, if accrued losses exceed 50
percent of capital, the capital must be increased.
Bolivia assesses a 12.5 percent tax on profits of a branch of a foreign
corporation operating in Bolivia. The branch tax is calculated on the book
profits of the branch regardless of remittances. Any portion of the profits
reinvested in Bolivia can be excluded from the taxable basis. Book profits are
deemed remitted 120 days after the end of the fiscal year.
There is a 13 percent value added tax ("VAT") on all sales, including
mineral commodities, a five percent import duty on machinery and equipment and a
ten percent duty on imported raw materials and components. The VAT paid on
purchases is recoverable against VAT collected on Bolivian sales. Exports are
not subject to VAT. The exporter can offset the VAT credit arising from
purchases with domestic sales or can apply for a refund of import duties and VAT
paid on inputs and raw materials included in the cost of exported goods.
However, the refund of credits arising from imports is limited to 13 percent of
the total value of the exports and therefore is not recoverable during the
exploration phase.
Mining Industry
Bolivia produces a number of mineral commodities including tin, gold,
silver, lead, zinc, antimony, tungsten, copper and bismuth. The country has long
been a leading mineral and precious metals producer. Bolivia was colonized in
the early sixteenth century by Spaniards who arrived in search of silver and
gold. The extensive silver mining operations in Potosi which developed under
Spanish rule led to the region being described as the "treasury of the Spanish
empire." In the early twentieth century, tin became the country's leading
mineral export although in recent years the focus has returned to gold, silver,
lead and zinc. The country's principal mining regions are the eastern part of
Bolivia along the Brazilian border, and the traditional mining areas of the
Altiplano and Cordillera.
Recent regulatory reforms have resulted in increased exploration
activities, particularly with respect to precious metals. In the early 1990s,
the government reformed the land tenure system, reduced taxes on mining
operations, established equal treatment under the law between Comibol and
foreign companies in obtaining mineral concessions, and created a national
Mining Inventory Service which will maintain up-to-date information, including
maps, for exploration and mining exploration concessions.
Mining Concessions
Pursuant to the Bolivian constitution, all mineral deposits are the
property of the State. Mining concessions, which may be awarded by the
government, grant the holder, subject to the payment of patents, the real and
exclusive right to carry out prospecting, exploration, exploitation,
concentration, smelting, refining and marketing activities with respect to all
mineral substances located within a given concession. Individual mineral claims
consist of indivisible squares shaped like an inverted pyramid, whose lower
vertex is the center of the earth and whose surface area covers a total area of
25 hectares. Mining concessions are comprised of no fewer than one and no more
than 2,500 adjacent squares. Mining concessions are distinct from the surface
rights which comprise traditional land ownership; holders of mining concessions
are entitled to explore and exploit a property and to use the water found at the
property. Expropriation or the establishment of easements may not be legally
carried out if the water supplies for a population are interrupted or negatively
affected.
Holders of mining concessions are obliged to pay an annual mining patent.
Co-owners are jointly and severally responsible for the patent payment. The
patent is progressive and fees are based on the number of years of existence of
the concession. Concessions established before the enactment of the new
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Mining Code, which comprise an area of up to 1,000 mining claims, pay the
equivalent of $1.00 per claim per year. Concessions established before the
enactment of the new Mining Code which comprise an area of more than 1,000
mining claims pay the equivalent of $1.00 per claim per year for the first five
years of the existence of the concession; thereafter, the patent increases to
the equivalent of $2.00 per claim per year. Concessions established under the
new Mining Code pay the following: for the first five years of the existence of
a concession, the owner is required to pay the equivalent of $25.00 per square
per year; thereafter the patent increases to the equivalent of $50.00 per square
per year. All of our Bolivian concessions were established prior to enactment of
the new Mining Code.
Mining concessions are liable to forfeiture when the corresponding annual
patent fails to be paid. Forfeiture is governed by law and does not require any
administrative or judicial declaration. When a concession has been forfeited,
the mining concession reverts to the State.
The new Mining Code requires concession holders to minimize damage to
surface rights, to neighboring concessions and to the environment. Concession
holders are liable for damage or injury caused by their operations. Concession
holders are not obliged to remediate environmental damage caused prior to the
effectiveness of the new Mining Code or the date on which the mining concession
was obtained, if the concession was granted at a later date. Upon becoming the
owner of a concession, the concession holder must conduct an environmental audit
to determine the extent of any environmental damage. If an environmental audit
is not performed, the concession holder assumes the responsibility to mitigate
all environmental damage. Environmental liabilities incurred under this new
regime survive the existence or ownership of the relevant concession.
In 1992, the Bolivian government passed environmental legislation that
established a comprehensive scheme for the initiation of a national
environmental policy to protect the environment, promote sustainable
development, promote the preservation of biological diversity and promote
environmental education. Few environmental regulations specifically applicable
to mineral exploration companies in Bolivia have been proclaimed to date. At
present, concession holders must maintain waterways running through their
concessions in their unspoiled state and concession holders must employ
exploration and development techniques that will minimize environmental damage.
Under Bolivia's environmental regulations, environmental impact assessments are
required. In practice, foreign mining companies operating in Bolivia generally
adhere to U.S. and European environmental standards for mining and exploration.
Labor Market
Bolivia has a large pool of unskilled and, in the mining sector, semi-
skilled labor, but a relative shortage of skilled labor and managerial expertise
overall. One percent of the payroll tax is used for worker training. A large
portion of the labor force that is engaged in wage employment is also unionized,
although union participation is not mandatory. Strikes, the frequency of which
have decreased greatly since the early 1980s, are not forbidden. However,
before a strike may be called, all legally mandated alternatives, such as
negotiation, mediation and conciliation, must have been exhausted. Collective
bargaining agreements are very rare, as negotiations are generally carried out
between an individual company's union and management.
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USE OF PROCEEDS
Unless otherwise specified in a prospectus supplement, the net proceeds we
receive from the sale of the securities offered by this prospectus and the
accompanying prospectus supplement will be used for one or more of the following
purposes:
. constructing and developing the San Cristobal project;
. exploring and developing properties in our portfolio;
. maintaining control or ownership of our properties, including making
ongoing lease and royalty payments and paying other maintenance and
registration fees;
. acquiring additional mining related properties or businesses; and
. financing other general corporate purposes.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
general terms that may apply to the Debt Securities. The particular terms of
any Debt Securities will be described in the prospectus supplement relating to
those Debt Securities.
The Debt Securities will be either our senior debt securities or our
subordinated debt securities. The senior debt securities will be issued under
an Indenture (the "Senior Indenture") to be entered into between our company and
Wilmington Trust Company, as trustee. The subordinated debt securities will be
issued under an Indenture (the "Subordinated Indenture") to be entered into
between our company and Wilmington Trust FSB, as trustee. The Senior Indenture
and the Subordinated Indenture are together called the "Indentures."
The following summary of certain provisions of the Indentures is not
complete. You should refer to the Indentures, copies of which are exhibits to
the Registration Statement of which this prospectus is a part. Section
references below are to the section in the applicable Indenture. Capitalized
terms have the meanings assigned to them in the applicable Indenture. The
referenced sections of the Indentures and the definitions of capitalized terms
are incorporated by reference.
We are a holding company that conducts substantially all of our operations
through subsidiaries. As a result, claims of the holders of the Debt Securities
will generally have a junior position to claims of creditors of our
subsidiaries, except to the extent that our company may be recognized as a
creditor of those subsidiaries. Claims of creditors of our subsidiaries other
than our company may include substantial amounts of long-term debt, commercial
paper and other short-term borrowings.
General
Neither Indenture limits the amount of Debt Securities that we may issue
thereunder. Each Indenture provides that Debt Securities may be issued up to
the principal amount authorized by our company from time to time. The senior
debt securities will have the same ranking as all of our other unsecured and
unsubordinated debt. The subordinated debt securities will be unsecured and
will be subordinated and junior to all Senior Indebtedness (as defined below
under "Subordinated Debt Securities--Subordination").
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The Debt Securities may be issued in one or more separate series of senior
debt securities and/or subordinated debt securities. The prospectus supplement
relating to the particular series of Debt Securities being offered will specify
the particular amounts, prices and terms of those Debt Securities. These terms
may include:
. the title of the Debt Securities;
. any limit upon the aggregate principal amount of the Debt Securities;
. the date or dates, or the method of determining the dates, on which the
Debt Securities will mature;
. the interest rate or rates of the Debt Securities, or the method of
determining those rates, the interest payment dates and, for Registered
Debt Securities, the Regular Record Dates;
. if a Debt Security is issued with original issue discount, the yield to
maturity;
. the places where payments may be made on the Debt Securities;
. any mandatory or optional redemption provisions applicable to the Debt
Securities;
. any sinking fund or analogous provisions applicable to the Debt
Securities;
. any conversion or exchange provisions applicable to the Debt Securities;
. any terms for the attachment to the Debt Securities of warrants, options
or other rights to purchase or sell our securities;
. the portion of the principal amount of the Debt Security payable upon
the acceleration of maturity if other than the entire principal amount
of such Debt Securities;
. any deletions of, or changes or additions to, the Events of Default or
covenants applicable to the Debt Securities;
. if other than U.S. dollars, the currency or currencies, including
European Currency Units, the euro and other composite currencies, in
which payments on the Debt Securities will be payable (which currencies
may be different for principal, premium and interest payments) and
whether the holder may elect payment to be made in a different currency;
. the method of determining the amount of any payments on the Debt
Securities which are linked to an index;
. whether the Debt Securities will be issued in fully registered form
without coupons ("Registered Debt Securities") or in bearer form, with
or without coupons ("Bearer Debt Securities"), or any combination of
these, and whether they will be issued in the form of one or more global
securities (each a "Global Debt Security") in temporary or definitive
form;
. any terms relating to the delivery of the Debt Securities if they are to
be issued upon the exercise of warrants;
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. whether and on what terms we will pay additional amounts to holders of
the Debt Securities that are not U.S. persons in respect of any tax,
assessment or governmental charge withheld or deducted and, if so,
whether and on what terms we will have the option to redeem the Debt
Securities rather than pay the additional amounts; and
. any other specific terms of the Debt Securities.
(Sections 2.2 and 3.1).
Unless otherwise specified in the applicable prospectus supplement, (1) the
Debt Securities will be Registered Debt Securities and (2) Debt Securities
denominated in U.S. dollars will be issued, in the case of Registered Debt
Securities, in denominations of $1,000 or an integral multiple of $1,000 and, in
the case of Bearer Debt Securities, in denominations of $5,000. Debt Securities
may bear legends required by United States federal tax law and regulations
(Section 4.1).
If any of the Debt Securities are sold for any foreign currency or currency
unit or if any payments on the Debt Securities are payable in any foreign
currency or currency unit, the prospectus supplement will contain any
restrictions, elections, tax consequences, specific terms and other information
with respect to such Debt Securities and such foreign currency or currency unit.
Some of the Debt Securities may be issued as original issue discount Debt
Securities (the "Original Issue Discount Securities"). Original Issue Discount
Securities bear no interest during all or a part of the time that such Debt
Securities are outstanding or bear interest at below-market rates and will be
sold at a discount below their stated principal amount at maturity. The
prospectus supplement will also contain certain special tax, accounting or other
information relating to Original Issue Discount Securities or relating to
certain other kinds of Debt Securities that may be offered, including Debt
Securities linked to an index or payable in currencies other than U.S. dollars.
Exchange, Registration and Transfer
Debt Securities may be transferred or exchanged at the corporate trust
office of the security registrar or at any other office or agency maintained by
our company for such purposes, without the payment of any service charge, except
for any tax or governmental charges (Section 4.4). The Senior Trustee initially
will be the designated security registrar in the United States for the senior
debt securities. The Subordinated Trustee initially will be the designated
security registrar in the United States for the subordinated debt securities.
If Debt Securities are issuable as both Registered Debt Securities and
Bearer Debt Securities, the Bearer Debt Securities (with outstanding coupons,
except as provided below) will be exchangeable for Registered Debt Securities.
If a Bearer Debt Security with related coupons is surrendered in exchange for a
Registered Debt Security between a record date and the date set for the payment
of interest, the Bearer Debt Security will be surrendered without the coupon
relating to that interest payment and that payment will be made only to the
holder of the coupon when due.
In the event of any redemption in part of any class or series of Debt
Securities, we will not be required to:
. issue, register the transfer of, or exchange, Debt Securities of any
series between the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and the close of business
on:
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. if Debt Securities of the series are issuable only as Registered Debt
Securities, the day of mailing of the relevant notice of redemption,
and
. if Debt Securities of the series are issuable as Bearer Debt
Securities, the day of the first publication of the relevant notice
of redemption or, if Debt Securities of the series are also issuable
as Registered Debt Securities and there is no publication, the day of
mailing of the relevant notice of redemption;
. register the transfer of, or exchange, any Registered Debt Security
selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Debt Security being redeemed in part; or
. exchange any Bearer Debt Security selected for redemption, except to
exchange it for a Registered Debt Security which is simultaneously
surrendered for redemption.
(Section 4.4).
Payment and Paying Agent
We will pay principal, interest and any premium on fully registered
securities in the designated currency or currency unit at the office of a
designated paying agent. Payment of interest on fully registered securities may
be made at our option by check mailed to the persons in whose names the Debt
Securities are registered on days specified in the Indentures or any prospectus
supplement. (Sections 4.6 and 4.10).
We will pay principal, interest and any premium on bearer securities in the
designated currency or currency unit at the office of a designated paying agent
or agents outside of the United States. Payments will be made at the offices of
the paying agent in the United States only if the designated currency is U.S.
dollars and payment outside of the United States is illegal or effectively
precluded. (Sections 4.10 and 11.2). If any amount payable on any Debt
Security or coupon remains unclaimed at the end of two years after such amount
became due and payable, the Paying Agent will release any unclaimed amounts to
our company, and the holder of the Debt Security or coupon will look only to our
company for payment. (Section 11.3).
The designated paying agent in the United States for the senior debt
securities initially will be the Senior Trustee located at 1100 North Market
Street, Rodney Square North, Wilmington, Delaware. The designated paying agent
in the United States for the subordinated debt securities initially will be the
Subordinated Trustee located at 3773 Howard Hughes Parkway, Las Vegas, Nevada.
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
whom we will identify in a prospectus supplement. Global Debt Securities may be
issued in either registered or bearer form and in either temporary or definitive
form. All Global Debt Securities in bearer form will be deposited with a
depositary outside of the United States (a "Common Depositary"). We will
describe the specific terms of the depositary arrangement with respect to a
series of Debt Securities in the applicable prospectus supplement.
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Other than with respect to payments, we may treat a person having a
beneficial interest in a definitive Global Debt Security as the holder of the
principal amount of outstanding Debt Securities represented by the definitive
Global Debt Security as specified in a written statement delivered to the
trustee by the holder of the definitive Global Debt Security, or, in the case of
a definitive Global Debt Security in bearer form, by Euroclear or Cedel Bank (as
defined below). (Section 4.11). Neither we, the trustee nor any of our
respective agents will be responsible for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global Debt
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 4.11). We anticipate that the
following provisions will apply to all depositary arrangements with a
depositary.
Temporary Global Securities
All or any portion of the Debt Securities of a series that are issuable as
Bearer Debt Securities initially may be represented by one or more temporary
Global Debt Securities, without interest coupons, to be deposited with a
Depositary in London for Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System ("Euroclear"), and Cedel Bank,
societe anonyme ("Cedel Bank") for credit to the accounts of the beneficial
owners of the Debt Securities (or to such other accounts as they may direct).
On and after an exchange date provided in the applicable prospectus supplement,
each temporary Global Debt Security will be exchangeable for definitive Debt
Securities in bearer form, registered form, definitive global bearer form or any
combination thereof, as specified in the prospectus supplement. No Bearer Debt
Security delivered in exchange for a portion of a temporary Global Debt Security
will be mailed or delivered to any location in the United States. (Sections 4.2
and 4.3).
Interest on a temporary Global Debt Security will be paid to Euroclear
and/or Cedel Bank with respect to the portion held for its account only after
they deliver to the trustee a certificate which states that such portion:
. is not beneficially owned by a United States person;
. has not been acquired by or on behalf of a United States person or for
offer to resell or for resale to a United States person or any person
inside the United States; or
. if a beneficial interest has been acquired by a United States person,
(a) that such person is a financial institution (as defined in the
Internal Revenue Code of 1986, as amended), purchasing for its own
account or has acquired the Debt Security through a financial
institution and (b) that the Debt Securities are held by a financial
institution that has agreed in writing to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code and the
regulations thereunder and that it did not purchase for resale inside
the United States.
The certificate must be based on statements provided by the beneficial owners of
interests in the temporary Global Debt Security. Each of Euroclear and Cedel
Bank will credit the interest received by it to the accounts of the beneficial
owners of the Debt Security (or to such other accounts as they may direct).
(Section 4.3).
"United States person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or an estate or trust with income subject to United
States federal income taxation regardless of its source.
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Definitive Global Securities
Bearer Securities. The applicable prospectus supplement will describe the
exchange provisions, if any, of Debt Securities issuable in definitive global
bearer form. We will not deliver any Bearer Debt Securities delivered in
exchange for a portion of a definitive Global Debt Security to any location in
the United States. (Section 4.4).
U.S. Book-Entry Securities. Debt Securities of a series represented by a
definitive global Registered Debt Security and deposited with or on behalf of a
depositary in the United States ("U.S. Book-Entry Debt Securities") will be
represented by a definitive Global Debt Security registered in the name of the
depositary or its nominee. Upon the issuance of a Global Debt Security and the
deposit of the Global Debt Security with the depositary, the depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts represented by that Global Debt Security to the accounts of
institutions that have accounts with such depositary or its nominee
("participants"). The accounts to be credited shall be designated by the
underwriters or agents for the sale of such U.S. Book-Entry Debt Securities or
by our company, if such Debt Securities are offered and sold directly by our
company.
Ownership of U.S. Book-Entry Debt Securities will be limited to
participants or persons that may hold interests through participants. In
addition, ownership of U.S. Book-Entry Debt Securities will be evidenced only
by, and the transfer of that ownership will be effected only through, records
maintained by the depositary or its nominee for the definitive Global Debt
Security or by participants or persons that hold through participants.
So long as the depositary, or its nominee, is the registered owner of such
Global Debt Security, such depositary or nominee, as the case may be, will be
considered the sole owner or holder of the U.S. Book-Entry Debt Securities
represented by such Global Debt Security for all purposes under the Indenture.
Payment of principal of, and premium and interest, if any, on, U.S. Book-Entry
Debt Securities will be made to the depositary or its nominee as the registered
owner or the holder of the Global Debt Security representing such U.S. Book-
Entry Debt Securities. Owners of U.S. Book-Entry Debt Securities:
. will not be entitled to have such Debt Securities registered in their
names;
. will not be entitled to receive physical delivery of the Debt Securities
in definitive form; and
. will not be considered the owners or holders of those Debt Securities
under the Indenture.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
laws impair the ability to purchase or transfer U.S. Book-Entry Debt Securities.
We expect that the depositary for U.S. Book-Entry Debt Securities of a
series, upon receipt of any payment of principal of, or premium or interest, if
any, on, the related definitive Global Debt Security, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Debt
Security as shown on the records of such Depositary. We also expect that
payments by participants to owners of beneficial interests in such Global Debt
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of those participants.
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Certain Covenants of the Company
Limitation on Merger, Consolidation and Certain Sales of Assets. We may,
without the consent of the holders of the Debt Securities, merge into or
consolidate with any other person, or convey or transfer all or substantially
all of our company's properties and assets to another person provided that:
. the successor assumes on the same terms and conditions all the
obligations under the Debt Securities and the Indentures; and
. immediately after giving effect to the transaction, there is no default
under the applicable Indenture.
(Section 9.1).
The remaining or acquiring person will be substituted for our company in
the Indentures with the same effect as if it had been an original party to the
Indenture. (Section 9.2). A prospectus supplement will describe any other
limitations on the ability of our company to merge into, consolidate with, or
convey or transfer all or substantially all or our properties and assets to,
another person.
Satisfaction and Discharge; Defeasance
We may be discharged from our obligations on the Debt Securities of any
class or series that have matured or will mature or be redeemed within one year
if we deposit with the trustee enough cash and/or U.S. Government Obligations or
Foreign Government Securities, as the case may be, to pay all the principal,
interest and any premium due to the Stated Maturity Date or Redemption Date of
the Debt Securities and comply with certain other conditions set forth in the
applicable Indenture. (Section 5.1).
Each Indenture contains a provision that permits our company to elect (1)
to be discharged after from all of our obligations (except for certain
obligations, including those respecting the defeasance trust and obligations to
register the transfer or exchange of the Debt Securities, to replace mutilated,
destroyed, lost or stolen Debt Securities and to maintain a registrar and paying
agent in respect of the Debt Securities) with respect to any class or series of
Debt Securities then outstanding ("legal defeasance") and/or (2) to be released
from our obligations under certain covenants and from the consequences of an
event of default resulting from a breach of those covenants ("covenant
defeasance"). To make either of the above elections, we must deposit in trust
with the trustee cash and/or U.S. Government Obligations, if the Debt Securities
are denominated in U.S. dollars, and/or Foreign Government Securities if the
Debt Securities are denominated in a foreign currency, which through the payment
of principal and interest under their terms will provide sufficient amounts,
without reinvestment, to repay in full those Debt Securities. As a condition to
legal defeasance or covenant defeasance, we must deliver to the trustee an
opinion of counsel that the holders of the Debt Securities will not recognize
income, gain or loss for U. S. federal income tax purposes as a result of such
deposit and defeasance and will be subject to U.S. federal income tax in the
same amount and in the same manner and times as would have been the case if such
deposit and defeasance had not occurred. In the case of a legal defeasance
only, such opinion of counsel must be based on a ruling of the U.S. Internal
Revenue Service or other change in applicable U.S. federal income tax law.
(Section 5.3).
Events of Default, Notice and Waiver
Each Indenture defines an Event of Default with respect to any class or
series of Debt Securities as one or more of the following events:
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. failure to pay interest on any Debt Security of the class or series for
30 days when due;
. failure to pay the principal or any premium on any Debt Securities of
the class or series when due;
. failure to make any sinking fund payment for 30 days when due;
. failure to perform any other covenant in the Debt Securities of such
series or in the applicable Indenture with respect to Debt Securities of
such series for 90 days after being given notice; and
. certain events of bankruptcy, insolvency and reorganization.
An Event of Default for a particular class or series of Debt Securities
does not necessarily constitute an Event of Default for any other class or
series of Debt Securities issued under an Indenture. (Section 6.1).
In the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Debt Securities will become due and
payable immediately without further action or notice. If any other Event of
Default as to a series of Debt Securities occurs and is continuing, the trustee
or the holders of at least 25% in principal amount of the then outstanding Debt
Securities of that series may declare all the Debt Securities to be due and
payable immediately.
The holders of a majority in aggregate principal amount of the Debt
Securities then outstanding by notice to the trustee may on behalf of the
holders of all of the Debt Securities of that series waive any existing default
or Event of Default and its consequences under the applicable Indenture except a
continuing default or Event of Default in the payment of interest on, or the
principal of, the Debt Securities of that series.
Each Indenture requires the trustee to, within 90 days after the occurrence
of a default known to it with respect to any outstanding series of Debt
Securities, give the holders of that class or series notice of the default if
uncured or not waived. However, the trustee may withhold this notice if it
determines in good faith that the withholding of this notice is in the interest
of those holders, except that the trustee may not withhold this notice in the
case of a payment default. The term "default" for the purpose of this provision
means any event that is, or after notice or lapse of time or both would become,
an Event of Default with respect to Debt Securities of that series. (Section
7.2).
Other than the duty to act with the required standard of care during an
Event of Default, a trustee is not obligated to exercise any of its rights or
powers under the applicable Indenture at the request or direction of any of the
holders of Debt Securities, unless the holders have offered to the trustee
reasonable security and indemnity. (Section 7.3). Each Indenture provides that
the holders of a majority in principal amount of outstanding Debt Securities of
any series may in certain circumstances direct the time, method and place of
conducting any proceeding for any remedy available to the trustee, or exercising
any trust or other power conferred on the trustee. (Section 6.12).
Each Indenture includes a covenant that we will file annually with the
trustee a certificate of no default, or specifying any default that exists.
(Section 11.4).
Modification of the Indentures
We and the applicable trustee may modify an Indenture without the consent
of the holders for limited purposes, including adding to our covenants or Events
of Default, establishing forms or terms of
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Debt Securities, curing ambiguities and other purposes which do not adversely
affect the holders in any material respect. (Section 10.1).
We and the applicable trustee may make modifications and amendments to an
Indenture with the consent of the holders of a majority in principal amount of
the outstanding Debt Securities of all affected series. However, without the
consent of each affected holder, no modification may:
. change the Stated Maturity of any Debt Security;
. reduce the principal, premium (if any), or rate of interest on any Debt
Security;
. change any place of payment or the currency in which any Debt Security
is payable;
. impair the right to enforce any payment after the Stated Maturity or
Redemption Date;
. adversely affect the terms of any conversion right;
. reduce the percentage of holders of outstanding Debt Securities of any
series required to consent to any modification, amendment or waiver
under the Indenture;
. change any of our obligations, with respect to outstanding Debt
Securities of a series, to maintain an office or agency in the places
and for the purposes specified in the Indenture for such series; or
. change the provisions in the Indenture that relate to its modification
or amendment other than to increase the percentage of outstanding Debt
Securities of any series required to consent to any modification or
waiver under the Indenture.
(Section 10.2).
Meetings
The Indentures contain provisions for convening meetings of the holders of
Debt Securities of a series. (Section 14.1). A meeting may be called at any
time by the trustee and also, upon request, by our company or the holders of at
least 25% in principal amount of the outstanding Debt Securities of such series,
in any such case upon notice given in accordance with "Notices" below. (Section
14.2). Persons holding a majority in principal amount of the outstanding Debt
Securities of a series will constitute a quorum at a meeting. A meeting called
by our company or the trustee that did not have a quorum may be adjourned for
not less than 10 days, and if there is not a quorum at the adjourned meeting,
the meeting may be further adjourned for not less than 10 days. Except for any
consent which must be given by the holders of each Debt Security affected by
certain modifications or amendments of an Indenture (which we have described
above under "Modification of the Indentures"), any resolution presented at a
meeting at which a quorum is present may be adopted by the affirmative vote of
the holders of a majority in principal amount of the outstanding Debt Securities
of that series. But any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver, or other action which may be
made, given, or taken by the holders of a specified percentage, which is equal
to or less than a majority, in principal amount of outstanding Debt Securities
of a series may be adopted at a meeting at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with an Indenture will be binding on all holders of Debt
Securities of that series and the related coupons. However, the Indentures
provide that if any action is taken with respect to any consent, waiver, or
other action which the Indentures expressly provide may be given by the holders
of a specified percentage of outstanding
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Debt Securities of all series affected by the modification or amendment (acting
as one class), only the principal amount of outstanding Debt Securities of any
series represented at a meeting at which a quorum is present and voting in favor
of such action will be counted for purposes of calculating the aggregate
principal amount of outstanding Debt Securities of all series affected by the
modification or amendment favoring such action. (Section 14.4).
Notices
In most instances, notices to holders of Bearer Debt Securities will be
given by publication at least once in a daily newspaper in New York, New York
and in London, England and in such other city or cities as may be specified in
such Bearer Debt Securities and will be mailed to such persons whose names and
addresses were previously filed with the applicable trustee, within the time
prescribed for the giving of such notice. Notice to holders of Registered Debt
Securities will be given by mail to the addresses of such holders as they appear
in the Security Register. (Section 1.6).
Title
Title to any Bearer Debt Securities and any related coupons will pass by
delivery. We, the trustee, and any agent of ours or the trustee may treat the
holder of any Bearer Debt Security or related coupon and, prior to due
presentment for registration of transfer, the registered owner of any Registered
Debt Security (including Registered Debt Securities in global registered form),
as the absolute owner of that Debt Security (whether or not such Debt Security
or coupon shall be overdue and notwithstanding any notice to the contrary) for
the purpose of making payment and for all other purposes. (Section 4.7).
Replacement of Securities Coupons
Debt Securities or coupons that have been mutilated will be replaced by our
company at the expense of the holder upon surrender of such mutilated Debt
Security or coupon to the security registrar. Debt Securities or coupons that
become destroyed, stolen, or lost will be replaced by our company at the expense
of the holder upon delivery to the security registrar of evidence of its
destruction, loss, or theft satisfactory to our company and the security
registrar. In the case of a destroyed, lost, or stolen Debt Security or coupon,
the holder of the Debt Security or coupon may be required to provide reasonable
security or indemnity to the trustee and our company before a replacement Debt
Security will be issued. (Section 4.5).
Governing Law
The Indentures, the Debt Securities, and the coupons will be governed by,
and construed under, the laws of the State of New York without regard to the
principles of conflicts of laws.
Concerning the Trustees
We may from time to time maintain lines of credit, and have other customary
banking relationships, with any of the trustees.
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Senior Debt Securities
The senior debt securities will rank equally with all of our company's
other unsecured and non-subordinated debt.
Certain Covenants in the Senior Indenture
The prospectus supplement relating to a series of senior debt securities
will describe any material covenants in respect of any series of senior debt
securities.
Subordinated Debt Securities
The subordinated debt securities will be unsecured. The subordinated debt
securities will be subordinate in right of payment to all Senior Indebtedness.
(Section 15.1 of Subordinated Indenture). In addition, claims of creditors of
our subsidiaries, including trade creditors, secured creditors, and creditors
holding guarantees issued by our subsidiaries, and claims of preferred
shareholders of our subsidiaries generally will have priority with respect to
the assets and earnings of such subsidiaries over the claims of our creditors,
including holders of the subordinated debt securities, even though such
obligations may not constitute Senior Indebtedness. The subordinated debt
securities, therefore, will be effectively subordinated to creditors (including
trade creditors) and preferred shareholders of our subsidiaries with regard to
the assets of such subsidiaries.
Unless otherwise specified in a prospectus supplement, "Senior
Indebtedness" shall mean the principal of, premium, if any, and interest on, (1)
all indebtedness for money borrowed by our company (including all indebtedness
of another person for money borrowed that we guarantee) other than the
subordinated debt securities, whether outstanding on the date of execution of
the Subordinated Indenture or thereafter created, assumed or incurred, unless
such indebtedness expressly states to have the same rank as the subordinated
debt securities or to rank junior to the subordinated debt securities; and (2)
any deferrals, renewals, or extensions of any such Senior Indebtedness, except
that Senior Indebtedness will not include:
. any of our obligations to our subsidiaries; and
. any liability for federal, state, local or other taxes owed or owing by
our company.
The senior debt securities constitute Senior Indebtedness under the
Subordinated Indenture. A prospectus supplement will describe the relative
ranking among different series of subordinated debt securities.
Unless otherwise specified in a prospectus supplement, we may not make any
payment on the subordinated debt securities and may not purchase, redeem, or
retire any subordinated debt securities if (1) any Senior Indebtedness is not
paid when due or (2) the maturity of any Senior Indebtedness is accelerated as a
result of a default, unless the default has been cured or waived and the
acceleration has been rescinded or such Senior Indebtedness has been paid in
full. We may, however, pay the subordinated debt securities without regard to
the foregoing if the Subordinated Trustee and our company receive written notice
approving such payment from the representatives of the holders of Senior
Indebtedness with respect to which either of the events set forth above has
occurred and is continuing. Unless otherwise specified in a prospectus
supplement, during the continuance of any default with respect to any Designated
Senior Indebtedness pursuant to which its maturity may be accelerated
immediately without further notice or the expiration of any applicable grace
periods, we may not pay the subordinated debt securities for 90 days after the
receipt by the Subordinated Trustee of written notice of such default
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from the representatives of the holders of Designated Senior Indebtedness. If
the holders of Designated Senior Indebtedness or the representatives of such
holders have not accelerated the maturity of such Designated Senior Indebtedness
at the end of the 90 day period, we may resume payments on the subordinated debt
securities. Not more than one such notice may be given in any consecutive 360-
day period, irrespective of the number of defaults with respect to Designated
Senior Indebtedness during such period. (Section 15.3 of Subordinated
Indenture).
In the event that we pay or distribute our company's assets to creditors
upon a total or partial liquidation, dissolution or reorganization of our
company or our company's property, the holders of Senior Indebtedness will be
entitled to receive payment in full of the Senior Indebtedness before the
holders of subordinated debt securities are entitled to receive any payment
(other than distributions of shares and certain debt securities Subordinated to
the Senior Indebtedness). Until the Senior Indebtedness is paid in full, any
payment or distribution to which holders of subordinated debt securities would
be entitled but for the subordination provisions of the Subordinated Indenture
(other than distributions of shares and certain debt securities subordinated to
the Senior Indebtedness) will be made to holders of the Senior Indebtedness as
their interests may appear. (Section 15.2 of Subordinated Indenture). If a
distribution is made to holders of subordinated debt securities that, due to the
subordination provisions, should not have been made to them, such holders of
subordinated debt securities are required to hold it in trust for the holders of
Senior Indebtedness, and pay it over to them as their interests may appear.
(Section 15.5 of Subordinated Indenture).
If payment of the subordinated debt securities is accelerated because of an
Event of Default, either we or the Subordinated Trustee will promptly notify the
holders of Senior Indebtedness or the representatives of such holders of the
acceleration. We may not pay the subordinated debt securities until five
Business Days after the holders or the representatives of the Senior
Indebtedness receive notice of such acceleration. Thereafter, we may pay the
subordinated debt securities only if the subordination provisions of the
Subordinated Indenture otherwise permit payment at that time. (Section 15.4 of
Subordinated Indenture).
As a result of the subordination provisions contained in the Subordinated
Indenture, in the event of insolvency, our creditors who are holders of Senior
Indebtedness may recover more, ratably, than the holders of subordinated debt
securities, and our creditors who are not holders of Senior Indebtedness may
recover less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than the holders of Subordinated Indebtedness.
The prospectus supplement relating to a series of subordinated debt
securities will describe any material covenants in respect of any series of
subordinated debt securities.
DESCRIPTION OF THE PREFERENCE SHARES
The following is a description of certain general terms and provisions of
the preference shares. The particular terms of any class or series of
preference shares will be described in the applicable prospectus supplement.
The following summary of terms of our preference shares is not complete.
You should refer to the provisions of our Memorandum of Association, the
Articles of Association and the resolutions of the Board of Directors relating
to the approval and terms of each class or series of the preference shares which
will be filed with the SEC at or prior to the time of issuance of such class or
series of the preference shares.
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We are authorized to issue up to 75,000,000 shares of our company, par
value $.01 per share. The Board of Directors has the power to designate whether
an issue of shares shall be ordinary shares or preference shares. As of
December 31, 1998, 26,250,761 ordinary shares were outstanding and no preference
shares were outstanding. Subject to limitations prescribed by law, the Board of
Directors is authorized at any time to:
. issue one or more classes or series of preference shares;
. determine the designation for any class or series of preference shares;
and
. determine the number of shares in any class or series.
The Board of Directors in approving the issuance of a class or series of
preference shares shall determine, and the applicable prospectus supplement will
set forth with respect to such class or series, the following:
. whether dividends on that class or series of preference shares will be
cumulative or non-cumulative;
. the dividend rate and rights in respect of dividends on the preference
shares of that class or series;
. the liquidation preference per share of that class or series of
preference shares, if any;
. the voting powers, if any, of the preference shares of that class or
series;
. any redemption and sinking fund provisions applicable to that class or
series of preference shares;
. any conversion provisions applicable to that class or series of
preference shares;
. the terms of any other preferences or other rights and limitations, if
any, applicable to that class or series of preference shares.
Dividends
Holders of preference shares will be entitled to receive, when, as and if
declared by the Board of Directors, cash dividends at the rates and on the dates
as set forth in the prospectus supplement. Except as set forth below, no
dividends will be declared or paid on any class or series of preference shares
unless full dividends for all classes or series of preference shares which have
the same rank as, or rank senior to, such class or series of preference shares
(including cumulative dividends still owing, if any) have been or
contemporaneously are declared and paid. When those dividends are not paid in
full, dividends will be declared pro rata so that the amount of dividends
declared per share on that class or series of preference shares and on each
other class or series of preference shares having the same rank as, or ranking
senior to, that class or series of preference shares will in all cases bear to
each other the same ratio that accrued dividends per share on that class or
series of preference shares and the other preference shares bear to each other.
In addition, generally, unless all dividends on the preference shares have been
paid, no dividends will be declared or paid on the ordinary shares and generally
we may not redeem or purchase any ordinary shares.
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Convertibility
No class or series of preference shares will be convertible into, or
exchangeable for, other securities or property except as set forth in the
prospectus supplement.
Redemption and Sinking Fund
No class or series of preference shares will be redeemable or receive the
benefit of a sinking fund except as set forth in the prospectus supplement.
Liquidation
In the event we voluntarily or involuntarily liquidate, dissolve, or wind
up our affairs, the holders of each class or series of preference shares will be
entitled to receive the liquidation preference per share specified in the
prospectus supplement plus an amount equal to accrued and unpaid dividends, if
any, before any distribution to the holders of ordinary shares. If the amounts
payable with respect to preference shares are not paid in full, the holders of
preference shares will share ratably in any distribution of assets based upon
the aggregate liquidation preference for all outstanding shares for each class
or series. After the holders of preference shares are paid in full, they will
have no right or claim to any of our remaining assets.
Voting
Except as indicated below or in the prospectus supplement, the holders of
preference shares will not be entitled to vote. If the equivalent of six
quarterly dividends payable on any class or series of preference shares is in
default, the number of directors constituting our Board of Directors will be
increased by two and the holders of such class or series of preference shares,
voting together as a class with all other classes and class or series of
preference shares entitled to vote on such election of directors, will be
entitled to elect those additional directors. In the event of such a default,
the Board of Directors will call a special meeting for the holders of all
affected classes or series within 10 business days of the default for the
purpose of electing the additional directors. Alternatively, the holders of
record of a majority of the outstanding shares of all affected classes or series
who are entitled to participate in the election of directors may elect such
additional directors by written consent. If all accumulated dividends on any
class or series of preference shares have been paid in full, the holders of
shares of such class or series will no longer have the right to vote on
directors and the term of office of each director so elected will terminate and
the number of our directors will, without further action, be reduced by two.
The majority vote of the holders of two-thirds of the outstanding shares of
each class or series of preference shares voting together as a class, is
required to authorize any amendment, alteration or repeal of the Articles of
Association, the Memorandum of Association or the adoption of a special
resolution by the shareholders of our company which would adversely affect the
powers, preferences or special rights of the preference shares, including
authorizing any class or series of shares with superior dividend and liquidation
preferences.
Miscellaneous
The holders of preference shares will have no preemptive rights. The
preference shares, when issued, will be fully paid and nonassessable.
Preference shares that we redeem or otherwise reacquire will resume the status
of authorized and unissued shares of share capital undesignated as to class or
series, and will be available for subsequent issuance. There are no
restrictions on repurchase or redemption of the preference shares while there is
any arrearage on sinking fund installments except as may be set forth in a
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prospectus supplement. Neither the par value nor the liquidation preference is
indicative of the price at which the preference shares will actually trade on or
after the date of issuance. Payment of dividends on any class or series of
preference shares may be restricted by loan agreements, indentures and other
transactions we may enter into.
No Other Rights
The shares of a class or series of preference shares will not have any
preferences, voting powers or relative, participating, optional or other special
rights except as set forth above or in the prospectus supplement, the Memorandum
of Association, the Articles of Association, the Board of Directors' resolution
approving the issuance of such shares or as otherwise required by law.
Transfer Agent and Registrar
The transfer agent for each class or series of preference shares will be
described in the prospectus supplement.
DESCRIPTION OF THE DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of preference
shares, rather than full shares of preference shares. If we do, we will issue
to the public receipts for depositary shares and each of these depositary shares
will represent a fraction (to be set forth in the prospectus supplement) of a
share of a particular class or series of preference shares. Each owner of a
depositary share will be entitled, in proportion to the applicable fractional
interest in shares of preference shares overlying that depositary share, to all
rights and preferences of the preference shares overlying that depositary share.
Those rights include dividend, voting, redemption and liquidation rights.
The shares of preference shares overlying the depositary shares will be
deposited with a bank or trust company selected by our company (the
"Depositary") under a deposit agreement between our company, the Depositary and
the holders of the depositary receipts (such depositary receipts evidence the
depositary shares issued pursuant to the deposit agreement). The Depositary
will be the transfer agent, registrar, and dividend disbursing agent for the
depositary shares.
Holders of depositary receipts will agree to be bound by the deposit
agreement, which will require holders to take certain actions such as filing
proof of residence and paying certain charges.
The following summary of certain provisions of the depositary shares
contained in this prospectus is not complete. You should refer to the forms of
the deposit agreement, and the Board of Directors' resolutions approving the
issuance of the depositary shares for the applicable class or series of
preference shares that are, or will be, filed with the SEC.
Dividends
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the class or series of preference shares
overlying the depositary shares to the record holders of depositary receipts in
proportion to the number of depositary shares owned by those holders on the
relevant record date, which will be the same date as the record date for the
preference shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of depositary receipts
that are entitled to receive the distribution, unless the
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Depositary determines that it is not feasible to make the distribution. If this
occurs, the Depositary may, with our approval, adopt another method for the
distribution, including selling the property and distributing the net proceeds
to the holders.
Liquidation Preference
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of each depositary share will be entitled to receive the
fraction of the liquidation preference accorded each share of the applicable
class or series of preference shares, as set forth in the prospectus supplement.
Redemption
If a class or series of preference shares overlying the depositary shares
is subject to redemption, the depositary shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of preference shares held by the Depositary. Whenever we redeem any
preference shares held by the Depositary, the Depositary will redeem, as of the
same redemption date, the number of depositary shares representing the
preference shares so redeemed. The Depositary will mail the notice of
redemption to the record holders of the depositary receipts promptly upon
receiving the notice from our company and not less than 35 nor more than 60 days
prior to the date fixed for redemption of the preference shares and the
depositary shares.
Voting
Upon receipt of notice of any meeting at which the holders of preference
shares are entitled to vote, the Depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts
underlying the preference shares. Each record holder of those depositary
receipts on the record date (which will be the same date as the record date for
the preference shares) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of preference shares
overlying that holder's depositary shares. The Depositary will try, as far as
practicable, to vote the preference shares overlying the depositary shares in
accordance with such instructions, and we will agree to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
do so. The Depositary will not vote the preference shares to the extent that it
does not receive specific instructions from the holders of depositary receipts.
Withdrawal of Preference Shares
Owners of depositary shares are entitled, upon surrender of depositary
receipts at the principal office of the Depositary and payment of any unpaid
amount due the Depositary, to receive the number of whole shares of preference
shares overlying the depositary shares. Partial shares of preference shares
will not be issued. Such holders of preference shares will not be entitled to
deposit the shares under the deposit agreement to receive depositary receipts
evidencing depositary shares for the preference shares.
Amendment and Termination of Deposit Agreement
The form of Depositary Receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended at any time and from time to
time by agreement between our company and the Depositary. However, any
amendment which materially and adversely alters the rights of the holders of
depositary shares (other than any change in fees) will not be effective unless
the amendment has been approved by at least a majority of the depositary shares
then outstanding. The deposit agreement may be terminated by our company or the
Depositary only if (1) all outstanding depositary shares have been redeemed or
(2) there has been a final distribution in respect of the
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preference shares in connection with our dissolution and such distribution has
been made to all the holders of depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will also pay
charges of the Depositary in connection with the initial deposit of the
preference shares and the initial issuance of the depositary shares, any
redemption of the preference shares and all withdrawals of preference shares by
owners of depositary shares. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and certain other charges as
provided in the deposit agreement to be for their accounts. In certain
circumstances, the Depositary may refuse to transfer depositary shares, may
withhold dividends and distributions, and may sell the depositary shares
evidenced by such Depositary Receipt if the charges are not paid.
Miscellaneous
The Depositary will forward to the holders of depositary receipts all
reports and communications we deliver to the Depositary that we are required to
furnish to the holders of the preference shares. In addition, the Depositary
will make available for inspection by holders of depositary receipts at the
principal office of the Depositary, and at such other places as it may from time
to time deem advisable, any reports and communications we deliver to the
Depositary as the holder of preference shares.
Neither we nor the Depositary will be liable if either of us are prevented
or delayed by law or any circumstance beyond our control in performing our
respective obligations under the Deposit Agreement. Our obligations and those of
the Depositary will be limited to performance in good faith of our respective
duties under the Deposit Agreement. Neither we nor the Depositary will be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preference shares unless satisfactory indemnity is
furnished. We and the Depositary may rely on written advice of counsel or
accountants, on information provided by holders of depositary receipts or other
persons believed in good faith to be competent to give such information, and on
documents believed to be genuine and to have been signed or presented by the
proper party or parties.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering a notice to our company
of its election to do so. We may remove the Depositary at any time. Any such
resignation or removal will take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. The successor Depositary
must be appointed within 60 days after delivery of the notice for resignation or
removal and must be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000.
Federal Income Tax Consequences
Owners of the depositary shares will be treated for federal income tax
purposes as if they were owners of the preference shares overlying the
depositary shares. Accordingly, such owners will be entitled to take into
account for federal income tax purposes income and deductions to which they
would be entitled if they were holders of such preference shares. In addition,
(1) no gain or loss will be recognized for federal income tax purposes upon the
withdrawal of preference shares in exchange for depositary shares, (2) the tax
basis of each share of preference shares to an exchanging owner of depositary
shares will, upon such exchange, be the same as the aggregate tax basis of the
depositary
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shares exchanged, and (3) the holding period for preference shares in the hands
of an exchanging owner of depositary shares will include the period during which
such person owned such depositary shares.
DESCRIPTION OF THE ORDINARY SHARES
As of the date of this prospectus, our authorized share capital consists of
75,000,000 shares, par value $.01 per share. We are authorized to issue up to
an aggregate of 75,000,000 ordinary shares and preference shares. As of
March 31, 1999, 26,248,320 ordinary shares were outstanding and no preference
shares were outstanding.
The ordinary shares offered hereby are validly issued, fully paid and
nonassessable. There are no provisions of Cayman Islands law, the Memorandum of
Association or the Articles of Association which impose any limitation on the
rights of shareholders to hold or vote ordinary shares by reason of their not
being resident in the Cayman Islands.
Dividends
Holders of ordinary shares are entitled to receive dividends ratably when
and as declared by the Board of Directors (subject to the rights of holders of
preference shares).
Voting
Holders of ordinary shares are entitled to one vote per share on all
matters submitted to a vote of shareholders at a shareholders' meeting.
Rights Upon Liquidation
In the event of our voluntary or involuntary dissolution, liquidation or
winding-up, the holders of outstanding ordinary shares shall be entitled to
share ratably in our assets available for distribution after payment in full of
all debts and after the holders of preference shares have received their
liquidation preferences in full.
Miscellaneous
Ordinary shares are not redeemable and have no subscription, conversion or
preemptive rights.
DESCRIPTION OF THE WARRANTS
We may issue warrants for the purchase of preference shares or ordinary
shares. Warrants may be issued independently or together with preference shares
or ordinary shares and may be attached to or separate from any offered
securities. Each class or series of warrants will be issued under a separate
warrant agreement to be entered into between our company and a bank or trust
company, as warrant agent (the "Warrant Agent"). The Warrant Agent will act
solely as our agent in connection with the warrants and will not have any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants. This summary of certain provisions of the
warrants is not complete. You should refer to the provisions of the warrant
agreement that will be filed with the SEC in connection with the offering of
warrants for the complete terms of the warrant agreement.
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Share warrants
The prospectus supplement relating to a particular issue of warrants to
issue ordinary shares or preference shares will describe the terms of the
warrants, including the following:
. the title of the warrants;
. the offering price for the warrants, if any;
. the aggregate number of the warrants;
. the designation and terms of the ordinary shares or preference shares
that may be purchased upon exercise of the warrants;
. if applicable, the designation and terms of the securities that the
warrants are issued with and the number of warrants issued with each
security;
. if applicable, the date from and after which the warrants and any
securities issued with the warrants will be separately transferable;
. the number of ordinary shares or preference shares that may be purchased
upon exercise of a Warrant and the price at which such shares may be
purchased upon exercise;
. the dates on which the right to exercise the warrants shall commence and
expire;
. if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
. the currency or currency units in which the offering price, if any, and
the exercise price are payable;
. if applicable, a discussion of material U.S. federal income tax
considerations;
. the antidilution provisions of the warrants, if any;
. the redemption or call provisions, if any, applicable to the warrants;
and
. any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
DESCRIPTION OF THE ORDINARY SHARE PURCHASE RIGHTS
General
We may issue Ordinary Share Purchase Rights. The Ordinary Share Purchase
Rights may be issued independently or together with any other security and may
or may not be transferable by the purchaser receiving the Ordinary Share
Purchase Rights. In connection with an Ordinary Share Purchase Rights offering
to our shareholders, certificates evidencing the Ordinary Share Purchase Rights
and a
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prospectus supplement will be distributed to our shareholders on the record date
for receiving Ordinary Share Purchase Rights in such Ordinary Share Purchase
Rights offering set by us.
The prospectus supplement relating to an Ordinary Share Purchase Rights
offering will describe the following terms of the Ordinary Share Purchase Rights
in respect of which this prospectus is being delivered:
. the exercise price for such Ordinary Share Purchase Rights;
. the number of such Ordinary Share Purchase Rights issued to each
shareholder;
. the extent to which such Ordinary Share Purchase Rights are
transferable;
. if applicable, a discussion of the material U.S. federal income tax
considerations applicable to the issuance or exercise of such Ordinary
Share Purchase Rights;
. any other terms of such Ordinary Share Purchase Rights, including terms,
procedures and limitations relating to the exchange and exercise of such
Ordinary Share Purchase Rights;
. the date on which the right to exercise such Ordinary Share Purchase
Rights shall commence, and the date on which such right shall expire;
. the extent to which such Ordinary Share Purchase Rights includes an
over-subscription privilege with respect to unsubscribed securities; and
. if applicable, the material terms of any standby underwriting
arrangement entered into by us in connection with the Ordinary Share
Purchase Rights offering.
Exercise of the Ordinary Share Purchase Rights
Holders of Ordinary Share Purchase Rights will be entitled to purchase for
cash such principal amount of ordinary shares at such exercise price as shall in
each case be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the Ordinary Share Purchase Rights offering. The
Ordinary Share Purchase Rights may be exercised at any time up to the close of
business on the expiration date for such Ordinary Share Purchase Rights set
forth in the prospectus supplement. After the close of business on the
expiration date, all unexercised Ordinary Share Purchase Rights will become
void.
The Ordinary Share Purchase Rights may be exercised as set forth in the
prospectus supplement relating to the Ordinary Share Purchase Rights offering.
Upon receipt of payment and the Ordinary Share Purchase Rights certificate
properly completed and duly executed at the corporate trust office of the agent
for the Ordinary Share Purchase Rights or any other office indicated in the
prospectus supplement, we will, as soon as practicable, forward the ordinary
shares purchasable upon such exercise. In the event that not all of the
Ordinary Share Purchase Rights issued in any Ordinary Share Purchase Rights
offering are exercised, we may decide to offer any unsubscribed ordinary shares
directly to persons other than shareholders, to or through agents, underwriters
or dealers or through a combination of such methods, (including pursuant to
standby underwriting arrangements), as set forth in the applicable prospectus
supplement.
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PLAN OF DISTRIBUTION
We may sell the securities to or through underwriters, or dealers, directly
to other purchasers or through agents. Unless otherwise set forth in a
prospectus supplement, (i) any such underwriters may include Salomon Smith
Barney and Merrill Lynch, Pierce, Fenner & Smith Incorporated acting alone or as
representatives of a group of underwriters, and (ii) any such agents may include
Salomon Smith Barney and Merrill Lynch, Pierce, Fenner & Smith Incorporated. A
prospectus supplement will set forth the names of such underwriters, dealers or
agents, if any, and any applicable commissions or discounts. In addition, we may
from time to time distribute the Ordinary Share Purchase Rights and issue
ordinary shares directly to purchasers or through agents in connection with the
exercise of Ordinary Share Purchase Rights. In addition, in connection with any
Ordinary Share Purchase Rights offering to our shareholders, we may enter into a
standby underwriting arrangement with one or more underwriters pursuant to which
such underwriter will purchase any ordinary shares remaining unsubscribed for
after such Ordinary Share Purchase Rights offering. The applicable prospectus
supplement will set forth the terms of the offering of the securities, including
the following:
. the name or names of any underwriters;
. the purchase price and the proceeds which we will receive from such
sale;
. any underwriting discounts and other items constituting underwriters'
compensation;
. any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; and
. any securities exchanges on which the securities of such class or series
may be listed.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
securities may be either offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
The obligations of the underwriters to purchase securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the securities of a class or series if any are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Securities may be sold directly by our company or through agents designated
by our company from time to time. Any agent involved in the offer or sale of
the securities in respect of which this prospectus is delivered will be named,
and any commissions payable by our company to such agent will be set forth, in
the prospectus supplement. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis for the period of
its appointment.
We may authorize agents or underwriters to solicit offers by certain types
of institutions to purchase securities from our company at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
The conditions to these contracts and the commissions payable for solicitation
of such contracts will be set forth in the applicable prospectus supplement.
Agents and underwriters may be entitled to indemnification by our company
against certain civil liabilities, including liabilities under the Securities
Act of 1933, or to contribution with respect to payments which the agents or
underwriters may be required to make relating to such liabilities. Agents
and underwriters may be customers of, engage in transactions with, or perform
services for, our company in the ordinary course of business.
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Each class or series of securities will be a new issue of securities with
no established trading market. Any underwriter may make a market in such
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any securities.
LEGAL MATTERS
Certain U.S. legal matters, including the validity of the securities
offered hereby, will be passed upon for our company by Akin, Gump, Strauss,
Hauer & Feld, L.L.P., New York, New York, our special legal counsel, and certain
Cayman Islands legal matters, including the validity of the securities offered
hereby, will be passed upon for our company by W.S. Walker & Company, Grand
Cayman, Cayman Islands.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31, 1998
have been incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
auditing and accounting.
Reserves for the San Cristobal project were calculated by Mine Reserves
Associates, Inc. All such figures are included herein in reliance upon the
authority of that firm as experts in such matters.
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================================================================================
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement to this prospectus. We have
authorized no one to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate as of any
date other that the date on the front of this document.
[APEX SILVER MINES LIMITED LOGO]
APEX SILVER MINES LIMITED
DEBT SECURITIES
PREFERENCE SHARES
DEPOSITARY SHARES
ORDINARY SHARES
WARRANTS
ORDINARY SHARE PURCHASE RIGHTS
____________
PROSPECTUS
____________
__________, 1999
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following statement sets forth the estimated amounts of expenses, other
than underwriting discounts, to be borne by our company in connection with the
offering described in this Registration Statement:
<TABLE>
<S> <C>
Registration fee Securities and Exchange Commission............................... $55,600
Blue Sky fees and expenses........................................................ ________*
Legal fees and expenses........................................................... ________*
Accounting fees and expenses...................................................... ________*
Printing and engraving expenses................................................... ________*
Trustee fees...................................................................... ________*
NASD fee.......................................................................... $20,500
Miscellaneous expenses............................................................ ________*
Total........................................................................ ________*
</TABLE>
_______________
* To be supplied in a prospectus supplement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Companies Act (1995 Revision) of the Cayman Islands provides in Section
77 that:
The liability of the directors, manager or the managing director of a
company may, if so provided by the memorandum of association, be unlimited.
Our Articles of Association provide as follows:
85.(a) Every Director (including for the purposes of this Article any
Alternate Director appointed pursuant to the provisions of these
Articles), Managing Director, Secretary, Assistant Secretary,
and, at the discretion of the Board of Directors, other officer,
consultant, employee or agent, for the time being and from time
to time of the Company and the personal representatives of the
same shall be indemnified and secured harmless out of the assets
and funds of the Company against all actions, proceedings, costs,
charges, expenses, losses, damages or liabilities incurred or
sustained by him in or about the conduct of the Company's
business or affairs or in the execution or discharge of his
duties, powers, authorities or discretions, including without
prejudice to the generality of the foregoing, any costs,
expenses, losses or liabilities incurred by him in defending
(whether successfully or otherwise) any civil proceedings
concerning the Company or its affairs in any court whether in the
Cayman Islands or elsewhere, provided, that no indemnification
shall be available in the case of willful default or fraud.
(b) No such Director, Alternate Director, Managing Director, agent,
Secretary, Assistant Secretary or other officer of the Company
shall be liable (i) for the acts, receipts, neglects, defaults or
omissions of any other such director or officer or
II-1
<PAGE>
agent of the Company or (ii) by reason of his having joined in
any receipt for money not received by him personally or (iii) for
any loss on account of defect of title to any property of the
Company or (iv) on account of the insufficiency of any security
in or upon which any money of the Company shall be invested or
(v) for any loss incurred through any bank, broker or other agent
or (vi) for any loss occasioned by any negligence, default,
breach of duty, breach of trust, error of judgment or oversight
on his part or (vii) for any loss, damage or misfortune
whatsoever which may happen in or arise from the execution or
discharge of the duties, powers, authorities, or discretions of
his office or in relation thereto, unless the same shall happen
through his own dishonesty.
(c) The Board of Directors may authorize the Company to purchase and
maintain insurance on behalf of any person described in Section
83(a), against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him
against such liability under the provisions of this Section 83.
To the extent that we are permitted to do so by these provisions, we intend
to give an indemnity to each of our directors and to arrange for the liabilities
under these indemnities to be covered by directors' and officers' liability
insurance policies.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<S> <C>
1.1 Form of Underwriting Agreement (Equity).*
1.2 Form of Underwriting Agreement (Non-Equity). *
4.1 Form of Senior Indenture.*
4.2 Form of Senior Debt Security (included as part of Exhibit 4.1).*
4.3 Form of Subordinated Indenture.*
4.4 Form of Subordinated Debt Security (included as part of Exhibit 4.3).*
4.5 Form of Ordinary Share Certificate.**
4.6 Form of Preference Share Certificate.*
4.7 Form of Ordinary Share Warrant Agreement.***
4.8 Form of Ordinary Share Warrant Certificate (included as part of Exhibit 4.7).***
4.9 Form of Preference Share Warrant Agreement.***
4.10 Form of Preference Share Warrant Certificate (included as part of Exhibit 4.9).***
4.11 Form of Deposit Agreement.***
4.12 Form of Depositary Receipt of Depositary Shares (included as part of Exhibit 4.13).***
4.13 Form of Ordinary Share Purchase Rights.***
5.1 Opinion of W.S. Walker & Company.*
5.2 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.*
23.1 Consent of W.S. Walker & Company (included as part of Exhibit 5.1).*
23.2 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included as part of Exhibit 5.2).*
23.3 Consent of PricewaterhouseCoopers LLP.*
23.4 Consent of Mine Reserves Associates, Inc.*
24 Powers of Attorney of the registrant (included on signature page).*
25.1 Form T-1 for Senior Indenture.*
25.2 Form T-1 for Subordinated Indenture.*
</TABLE>
II-2
<PAGE>
- ------------------
<TABLE>
<CAPTION>
<S> <C>
* Filed herewith.
** Incorporated by reference to the registrant's Registration Statement on Form S-1
(File No. 333-34685).
*** To be filed as an exhibit to a report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement (other than as provided
in the proviso and instructions to Item 512(a) of Regulation S-K) (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person in the successful defense of any action, suit or proceeding) is asserted
by such officer, director or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether or not such indemnification
by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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<PAGE>
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of New York, state of New York, on March 31, 1999.
APEX SILVER MINES LIMITED
By: /s/ Thomas S. Kaplan
--------------------------------
Thomas S. Kaplan
Chairman, Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Keith R. Hulley, Thomas S. Kaplan and Mark A.
Lettes his true and lawful attorneys-in-fact and agents, each acting alone, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, including post-effective amendments, and any
registration statement for the same offering by this Registration Statement that
is to be effective upon filing pursuant to rule 462(b) under the Securities Act,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto attorneys-
in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could in person,
and hereby ratifies and confirms all that said attorneys-in-fact and agents,
each acting alone, or their substitute or substitutes, may lawfully do or cause
to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas S. Kaplan Director March 31, 1999
- --------------------------------- (Registrant's Authorized
Thomas S. Kaplan Representative in the United
States)
/s/ Michael Comninos Director March 31, 1999
- ---------------------------------
Michael Comninos
/s/ Harry M. Conger Director March 31, 1999
- ---------------------------------
Harry M. Conger
/s/ Eduardo S. Elsztain Director March 31, 1999
- ---------------------------------
Eduardo S. Elsztain
/s/ David Sean Hanna Director March 31, 1999
- ---------------------------------
David Sean Hanna
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Ove Hoegh Director March 31, 1999
- ---------------------------------
Ove Hoegh
/s/ Keith R. Hulley Director March 31, 1999
- ---------------------------------
Keith R. Hulley
/s/ Richard Katz Director March 31, 1999
- ---------------------------------
Richard Katz
/s/ Paul Soros Director March 31, 1999
- ---------------------------------
Paul Soros
</TABLE>
II-6
<PAGE>
EXHIBIT 1.1
DRAFT 3/19/99
Apex Silver Mines Limited
_________ Shares
Ordinary Shares
($.01 par value)
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
Apex Silver Mines Limited, a Cayman Islands corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the number of shares of Ordinary Shares, $.01 par value
("Ordinary Shares"), of the Company set forth in Schedule I hereto (the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to the number of additional shares of
Ordinary Shares set forth in Schedule I hereto to cover over-allotments (the
"Option Securities;" the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act or
pursuant to Rule 462(d) under the Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final
<PAGE>
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants to,
------------------------------
and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more amendments or
supplements thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file with the Commission
one of the following: (1) after the Effective Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date of such
registration statement, an amendment to such registration statement (including
the form of final prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the Company has included
in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment and
form of final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; on the Effective Date and
at the Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
-----------------
representations or warranties as to the information contained in or omitted from
the Registration Statement, or the Final Prospectus (or any supplement thereto)
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<PAGE>
in reliance upon and in conformity with information furnished herein or in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The subsidiaries of the Company listed on Annex A hereto
(individually a "Significant Subsidiary" and collectively, the "Significant
Subsidiaries") are the only Significant Subsidiaries of the Company (within the
meaning of Rule 1-02 of Regulation S-X under the Act). The Company and each
Significant Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to own its
properties and conduct its business as described in the Final Prospectus, and is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification, except
where any failure to be so qualified would not individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
(d) All the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Final Prospectus,
all outstanding shares of capital stock of the Subsidiaries are owned directly
or indirectly by the Company free and clear of any perfected security interest
or any other security interests, claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set forth in
the Final Prospectus; the Ordinary Shares of the Company conform in all
material respects to the description thereof contained in the Final Prospectus;
the outstanding shares of Ordinary Shares have been duly and validly authorized
and issued and are fully paid and nonassessable; the Securities being sold
hereunder have been duly and validly authorized, and, when issued and delivered
to and paid for by the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities have been duly authorized for listing,
subject to official notice of issuance on the American Stock Exchange; the
certificates for the Securities are in valid and sufficient form; the holders of
outstanding shares of Ordinary Shares of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except as set
forth in the Final Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of Ordinary Shares of or ownership
interests in the Company are outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as required;
and the summaries of legal and regulatory matters and proceedings under the
headings ["Republic of Bolivia," "Description of Ordinary Shares" and "Title and
Ownership Rights" (under both of the "Development Project" and "Advanced
Exploration Properties" headings)] fairly summarize the matters therein
described.
-3-
<PAGE>
(g) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final Prospectus.
(j) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company
or any of its subsidiaries or (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which their respective property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties, which breach, violation or imposition would individually
or in the aggregate have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole.
(k) Except as set forth in the Final Prospectus, no holders of
securities of the Company have rights to the registration of such securities
under the Securities Act.
(l) The consolidated financial statements and schedules of the Company
and its consolidated subsidiaries included in the Final Prospectus and the
Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and the rules and regulations thereunder and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption[s] ["Selected
Consolidated Financial Data"] in the Final Prospectus and Registration Statement
fairly present, on the basis stated in the Final Prospectus and the Registration
Statement, the information included therein.
-4-
<PAGE>
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or their respective properties is pending or
threatened that (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to have a
material adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto) (except, in the case of this clause (ii),
for those that have been disclosed in the Final Prospectus).
(n) Except as set forth in the Final Prospectus, each of the Company
and each of its subsidiaries, owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted and the
Company directly or indirectly through its subsidiaries owns, leases or
possesses the rights to all properties as are necessary to explore, develop and
exploit the San Cristobal Project (as defined in the Final Prospectus) in
Bolivia, except where the failure to own, lease or possess the rights for any
property would not singularly or in the aggregate have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole.
(o) Except as set forth in the Final Prospectus, neither the Company
nor any subsidiary is in violation of any law, rule or regulation of any foreign
national, federal, state or local governmental or regulatory authority
applicable to it or is not in non-compliance with any term or condition of, or
has failed to obtain and maintain in effect, any license, certificate, permit,
registration, concession, franchise, or other governmental authorization
required for the ownership or lease of its property or the conduct of its
business, which violation, non-compliance or failure would individually or in
the aggregate have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus; and the Company has not received notice of any proceedings relating
to the revocation or material modification of any such license, certificate,
permit or other authorization.
(p) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, which violation or default would individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
-5-
<PAGE>
(q) PriceWaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Final Prospectus, are independent public accountants
with respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(r) There are no transfer taxes or other similar fees or charges under
foreign national law, federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by the Company
of the Securities, except as set forth in the Final Prospectus or where the
failure to pay any such taxes, fees or charges would not individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(s) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a material
adverse change in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as described in or as would not have a material adverse change in
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(t) Except as set forth in the Final Prospectus, no labor dispute with
the employees of the Company or any of its subsidiaries exists or is threatened
or imminent that could result in a material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse change in the
condition (financial or otherwise), prospects, earnings, business or properties
of the
-6-
<PAGE>
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(v) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the Final
Prospectus or where such prohibition would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(w) The Company and its subsidiaries possess all certificates,
authorizations, registrations, qualifications, licenses, concessions, franchises
and permits issued by the appropriate federal, state, foreign national or local
regulatory authorities necessary to conduct their respective businesses as
presently conducted, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization, registration, qualification, license,
concession, franchise or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus.
(x) Neither the Company nor any of its subsidiaries is in violation of
any federal, state, foreign national or local law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them under applicable
federal, state, foreign national and local occupational safety and health and
environmental laws and regulations to conduct their respective businesses as
presently conducted, and the Company and each such subsidiary is in compliance
with all terms and conditions of any such permit, license or approval, except
any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not, singly or in the
aggregate, result in a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus.
(y) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in
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<PAGE>
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(z) The Company's independent technical consultants [Kvaerner Metals,
Davy Nonferrous Division, Mine Reserves Associates Inc., Pincock, Allen & Holt,
Mineral Resources Development Inc., Knight Piesold LLC and Behre Dolbear] who
have affirmed and verified the proven and probable ore reserves located at the
San Cristobal Project as of ________, 1999 and as set forth in or incorporated
by reference in the Final Prospectus are experts (as such term is used in
Section 11 (b) (3) of the Act) in the field of mining engineering and have
consented to being named in the Registration Statement.
(aa) The information set forth in the Registration Statement and the
Final Prospectus relating to the proven and probable ore reserves located at the
San Cristobal Project as of _______, 1999 has been prepared materially in
accordance with methods generally applied in the mining industry and conforms in
all material respects to the rules and regulations of the Commission.
(bb) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on behalf of
the several Underwriters to the Cayman Islands or any political subdivision or
taxing authority thereof or therein purely as a direct consequence of the issue
of Securities by the Company to or for the respective accounts of the several
Underwriters for resale and delivery to the initial purchasers thereof in the
manner contemplated herein.
(cc) The Shareholders' Agreements dated July, 1996 by and among the
Company, Apex Silver Mines LDC, Consolidated Commodities Ltd., Mr. Thomas S.
Kaplan, Litani Capital Management LDC, Silver Holdings LDC and each shareholder
a signatory thereto have been duly authorized, executed and delivered and are
valid and binding obligations enforceable, against the parties thereto,
including, without limitation, the "Holdback" provisions of Section 7 thereto.
(dd) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company.
(ee) Subsequent to the respective dates as of which information is
given in the Final Prospectus, (i) the Company has not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction in the ordinary course of business (other than the transactions
contemplated by this Underwriting Agreement); (ii) the Company has not purchased
any of its outstanding Common Stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its Common Stock; and (iii) there has
not been any material change in the capital stock, short-term debt or long-term
debt of the Company, except in each case as described in the Final Prospectus.
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<PAGE>
(ff) The Company owns or possesses all material patents, patent
applications, trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by it in
connection with its business, and the Company has not received any written
notice of infringement of, or conflict with, asserted rights of any third party
with respect to any of the foregoing which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company, except as described in or contemplated in
the Final Prospectus or Prospectus Supplement.
Any certificate signed by any officer or director of the Company and
any executive officer of Apex Corporation and delivered to the Representatives
or counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
------------------
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth on Schedule I hereto, the amount of the Underwritten
Securities set forth opposite such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth on Schedule I hereto at the same
purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Final Prospectus upon written or facsimile
notice by the Representatives to the Company setting forth the number of shares
of the Option Securities as to which the several Underwriters are exercising the
option and the settlement date. Delivery of certificates for the shares of
Option Securities by the Company, and payment therefor to the Company, shall be
made as provided in Section 3 hereof. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the second Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto, or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in
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<PAGE>
Section 9 hereof (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the second business day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option), certificates for the Option Securities in such names and
denominations as the Representatives shall have requested for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the Representatives
on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the Representatives (A)
when the Registration Statement, if not effective at the Execution Time, shall
have become effective, (B) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any
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<PAGE>
Rule 462(b) Registration Statement shall have been filed with the Commission,
(C) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, (D) of
any request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any additional information, (E) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (F) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
either of the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement either of the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company promptly will
(i) notify the Representatives of such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (iii) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the signed Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act or otherwise
required, as many copies of the Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Company will cooperate with the Representatives and counsel
for the Representatives in connection with endeavoring to obtain qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any fee of
the National Association of Securities Dealers, Inc., in connection with its
review of the offering;
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<PAGE>
provided, however, that the Company shall not be required to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not otherwise so
subject.
(f) Until the Business Day set forth on Schedule I hereto, the Company
will not, without the prior written consent of Salomon Smith Barney Inc, offer,
sell or contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, or announce the offering of, any other shares
of Ordinary Shares or any securities convertible into, or exchangeable for,
shares of Ordinary Shares; provided, however, that the Company may issue and
-------- -------
sell Ordinary Shares pursuant to any stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time and
described in the Final Prospectus; and the Company may issue Ordinary Shares
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time or pursuant to the Buy-Sell Agreement as
disclosed in the Final Prospectus.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM New
York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of either of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus,
and any such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
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<PAGE>
(b) The Company shall have furnished to the Representatives the
opinion of W.S. Walker & Company, Cayman Islands counsel for the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and its subsidiaries that are
incorporated under the laws of the Cayman Islands (individually a "Cayman
Subsidiary" and collectively the "Cayman Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Cayman Islands, with full corporate power and
authority to own its properties and conduct its business as described in
the Final Prospectus;
(ii) all the outstanding shares of capital stock of each Cayman
Subsidiary have been duly and validly authorized and issued and are fully
paid and, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Cayman Subsidiaries are owned,
directly or indirectly, by the Company free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or encumbrances;
(iii) the outstanding shares of Ordinary Shares have been duly and
validly authorized and issued and are fully paid; the Securities being sold
hereunder by the Company have been duly and validly authorized and, when
issued and delivered to and paid for by the Underwriters pursuant to this
Agreement will be fully paid; the certificates for the Securities are in
valid and sufficient form; and the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Securities; and the liability of a shareholder in respect
of such Securities is limited to the amount that the shareholder has agreed
to pay for such Securities and the Company cannot call for additional sums
to be paid by the shareholders in respect of such Shares;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Cayman Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately disclosed
in the Final Prospectus; and the summaries of legal and regulatory matters
and proceedings under the heading "Description of Ordinary Shares" fairly
summarize the matters therein described;
(vi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated herein nor the
fulfillment of the terms hereof or thereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or the Cayman Subsidiaries pursuant
to, (i) the Memorandum and Articles of Association of the Company or the
Cayman
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<PAGE>
Subsidiaries or (ii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or the Cayman Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or the
Cayman Subsidiaries or any of its or their respective properties, except
where such breach, violation or imposition would not individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole;
(vii) the Company's agreement to the choice of law provisions set
forth in Section 14 hereof will be recognized by the courts of the Cayman
Islands; the Company can sue and be sued in its own name under the laws of
the Cayman Islands, the irrevocable submission of the Company to the non-
exclusive personal jurisdiction of a New York Court, the waiver by the
Company of any objection to the venue of a proceeding of a New York Court
and the agreement of the Company that this Agreement shall be governed by
and construed in accordance with the laws of the State of New York are
legal, valid and binding; and judgment obtained in a New York Court arising
out of or in relation to the obligations of the Company under this
Agreement, not being a sum payable in respect of taxes or other charges of
a like nature or a fine or other penalty, is enforceable against the
Company in the courts of the Cayman Islands; and
(viii) The Company is not entitled to any immunity on the basis of
sovereignty or otherwise in respect of its obligations under this Agreement
and could not successfully interpose any such immunity as a defense in any
suit or action brought or maintained in respect of its obligations under
this Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the laws of the
Cayman Islands, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Reference to the Final Prospectus
in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel for the Company,
dated the Closing Date, to the effect that:
(i) each subsidiary of the Company incorporated in the United
States (individually a "Domestic Subsidiary" and collectively the "Domestic
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under
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<PAGE>
the laws of each jurisdiction which requires such qualification, except
where such breach, violation or imposition would not individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of each Domestic
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Domestic
Subsidiaries are owned by the Company, directly or indirectly, free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens or
encumbrances;
(iii) the Securities being sold hereunder by the Company are duly
listed, and admitted and authorized for trading, subject to official notice
of issuance, on the American Stock Exchange; and, except as set forth in
the Final Prospectus, to such counsel's knowledge, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of Ordinary Shares or ownership interests in the Company are
outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other document of
a character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; the descriptions contained in the Final Prospectus under
the heading "Taxation" constitute fair summaries of those statues and
regulations discussed therein applicable to the offering of the Securities;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Pro spectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or threatened
and the Registration Statement and the Final Prospectus (other than the
financial statements and other financial information contained therein, as
to which such counsel need not express any opinion) comply as to form in
all material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and such counsel has no
reason to believe that on the Effective Date or at the Execution Time the
Registration Statement contains or contained any untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Final Prospectus as of their date and on the Closing Date
include any untrue statement of a material fact or omitted or omits to
state a material fact necessary to
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<PAGE>
make the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to which
such counsel need not express any opinion);
(vi) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended;
(vii) to such counsel's knowledge, no consent, approval,
authorization, filing with or order of any court or governmental agency or
body is required in connection with the transactions contemplated herein,
except such as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction (and the securities laws of any
jurisdiction outside the United States) in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(viii) to such counsel's knowledge, neither the issue and sale of
the Securities, nor the consummation of any other of the transactions
contemplated herein nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its subsidiaries
pursuant to, (i) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument, filed as a material contract
by the Company under the Exchange Act, to which the Company or its
subsidiaries is a party or bound or to which their respective property is
subject, or (ii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its subsidiaries or
any of its or their respective properties, except where such breach,
violation or imposition would not individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole; and
(ix) Except as set forth in the Final Prospectus, to such
counsel's knowledge, no holders of securities of the Company have rights to
the registration of such securities under the Securities Act.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of
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<PAGE>
responsible officers of the Company and public officials. Reference to the Final
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(d) The Company shall have furnished to the Representatives the
opinion of Quintanilla & Soria, Bolivian counsel for the Company, dated the
Closing Date, with respect to matters of title and to corporate status in
Bolivia and other related matters as the Representatives may reasonably require.
(e) The Company shall have furnished to the Representatives the
opinion of Bufete Gutierrez-Falla, Honduran counsel for the Company, dated the
Closing Date, with respect to matters of title and to corporate status in
Honduras and other related matters as the Representatives may reasonably
require.
(f) The Company shall have furnished to the Representatives the
opinion of ________________, Mexican counsel for the Company, dated the Closing
Date, with respect to matters of title and to corporate status in Mexico and
other related matters as the Representatives may reasonably require.
(g) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Company and the Vice
President of Finance and Chief Financial Officer of Apex Corporation, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive of
any supplement thereto), there has been no material adverse change in the
condition (financial or otherwise),
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prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(i) At the Execution Time and at the Closing Date,
PriceWaterhouseCoopers, LLP shall have furnished to the Representatives letters,
dated respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations thereunder;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under Statement on
Auditing Standards No. 71 of the unaudited interim financial information
for the _____ month period ended ____________, 199 and as at ___________,
1999, included or incorporated by reference into the Registration Statement
and the Final Prospectus; carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the minutes
of the meetings of the stockholders, directors and audit committees of the
Company and the Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to
December 31, 1998, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act and with the related
rules and regulations of the Commission with respect to registration
statements on Form S-3; and said unaudited financial statements are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to _________,
1999, there were any changes, at a specified date not more than five
days prior to the date of the letter, in the accumulated deficit of
the Company and its subsidiaries, long term debt or capital stock of
the Company or decreases in the shareholders' equity of
-18-
<PAGE>
the Company as compared with the amounts shown on the __________,
1999, consolidated balance sheet included in the Registration
Statement and the Final Prospectus, or for the period from
___________, 1999 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year; in net
revenues, interest income or in total or per share amounts of net
income or interest income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation is not
deemed necessary by the Representatives;
(3) the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information) and Item 402 (Executive
Compensation) is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
including, but not limited to, the information set forth under the captions
"Summary Operating and Financial Information" and "Selected Financial
Information" in the Final Prospectus, the information included or
incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated by reference in the Registration
Statement and the Final Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (i) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in
-19-
<PAGE>
any case referred to in clause (i) or (ii) above, is, in the sole reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(k) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Annex B hereto from each
director of the Company and each executive officer of Apex Corporation addressed
to the Representatives, in which each such person agrees not to offer, sell,
contract to sell, pledge or otherwise dispose of, or file a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act with respect to, any shares of
Ordinary Shares of the Company or any securities convertible into or exercisable
or exchangeable for such Ordinary Shares, or publicly announce an intention to
effect any such transaction, for a period of [180 days] after the date of this
Agreement, other than (i) any shares of Ordinary Shares to be sold hereunder,
(ii) any option or warrant or the conversion of a security outstanding on the
date hereof and referred to in the Prospectus to which this Agreement relates
and (iii) other than shares of Ordinary Shares disposed of as bona fide gifts
approved by Salomon Smith Barney Inc.
(l) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel
for the Company, at 590 Madison Avenue, New York, New York, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Salomon Smith Barney Inc on demand for all out-of-pocket
expenses (including reasonable fees and disbursements
-20-
<PAGE>
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity with
respect to any Basic Prospectus or Preliminary Final Prospectus shall not inure
to the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting such loss, claim, damage, or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Preliminary Final Prospectus (or the Final Prospectus as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such Basic
Prospectus or Preliminary Final Prospectus was corrected in the Final Prospectus
(or the Final Prospectus as so amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding delivery
of the Securities, the stabilization legend in block capital letters on page
(ii) and, under the heading "Underwriting", (i) the sentences related to
concessions and reallowances and (ii) the paragraph
-21-
<PAGE>
related to stabilization in any Preliminary Final Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Final Prospectus or
the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than pursuant to the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits
-22-
<PAGE>
received by the Company on the one hand and by the Underwriters on the other
hand from the offering of the Securities; provided, however, that in no case
-----------------
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other hand,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement, and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase
-23-
<PAGE>
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Ordinary Shares shall have been suspended
by the Commission or the American Stock Exchange or trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market shall have been suspended or limited or minimum prices shall
have been established on either of such Exchanges or the Nasdaq Stock Market,
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Salomon Smith Barney Inc General Counsel (fax no.:
(212) 816-7912) and confirmed to the General Counsel, care of Salomon Smith
Barney Inc, at 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Keith Hulley (facsimile number (303) 839-5907) and confirmed to him
at Apex Silver Mines Corporation, 1700 Lincoln Street, Suite 3050, Denver,
Colorado 80203, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
-24-
<PAGE>
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the state of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
---------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended , and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended , and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
-25-
<PAGE>
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
-26-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Apex Silver Mines Limited
By: ______________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
Salomon Smith Barney Inc
[ Name of Co-manager, if any]
By: _______________
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule II to the foregoing
Agreement.
<PAGE>
SCHEDULE I
----------
Underwriting Agreement dated: [Date]
Registration Statement No.: [ ]
Representatives: Salomon Smith Barney Inc
Title, Purchase Price and Description of Securities:
Title: Ordinary Shares, par value $.01
Number of Ordinary Shares to be
sold by the Company: [ ]
Price to the Public per Ordinary Share: $
Price to the Public -- total: $
Underwriting Discount per Share: $
Underwriting Discount -- total $
Proceeds to the Company per Share: $
Proceeds to the Company -- total: $
Other Provisions: Option to purchase an
additional ________ Ordinary
Shares ("Option Securities")
Closing Date, Time and Location: [Date] at [Time]
Type of Offering: Non-delayed
Date referred to in Section [5(f)] after which the Company may offer or sell
securities issued or guaranteed by the company without the consent of the
Representatives: [ ] days after the [Execution Time]
Modification of items to be covered by the letter from PriceWaterhouseCoopers
LLP delivered pursuant to Section [6(e)] at the [Execution Time: None]
<PAGE>
SCHEDULE II
-----------
<TABLE>
<CAPTION>
Underwriters Number if Maximum Number Maximum Total
Underwritten of Option Securities Number of
Securities to be Available to be Securities Available
Purchased Purchased to be Purchased
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Salomon Smith
Barney Inc.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
ANNEX A
-------
Significant Subsidiaries
Name Jurisdiction
- ---- --------------
Apex Silver Mines LDC Cayman Islands
ASM Holdings Limited Cayman Islands
Apex Silver Mines Corporation Delaware, USA
Apex Partners LDC Cayman Islands
Andean Silver Corporation Cayman Islands
ASC Peru LDC Cayman Islands
ASC Partners LDC Cayman Islands
ASC Bolivia LDC Cayman Islands
Apex Asia LDC Cayman Islands
'JSC' Kumushtak Kyrghyzstan
Kumushtak Management Company Kyrghyzstan
'Asgadmongu' Company Ltd. Mongolia
Kanimansur LTD Mining Joint Venture
(Formation Pending) Tajikistan
Minera de Cordilleras, S. de R.L. Honduras
Cordilleras Silver Mines Ltd. Bahamas
Cordilleras Silver Mines LDC Cayman Islands
Minera de Cordilleras, S. de R.L. de C.V. Mexico
Compania Minerales de Zacatecas, S. de R.L.
de C.V. Mexico
Compania Metalurgica Baronse, S. de R.L. de C.V. Mexico
Compania Metalurgica Largo, S. de R.L. de C.V. Mexico
SMRL Dorita I de Ica (Formation Pending) Peru
<PAGE>
ANNEX B
-------
[Letterhead of director of the Company or executive officer of Apex Corporation]
Apex Silver Mines Limited
-------------------------
Public Offering of Ordinary Shares
----------------------------------
____________,1999
Salomon Smith Barney Inc
[ ]
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Apex Silver Mines
Limited, a Cayman Islands corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Ordinary Shares, $.01 par value (the "Ordinary
Shares"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, or file a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction, for a
period of 180 days after the date of this Agreement, other than (i) any shares
of Ordinary Shares to be sold hereunder, (ii) any option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectus to which this Agreement relates and (iii) shares of Ordinary Shares
disposed of as bona fide gifts approved by Salomon Smith Barney, Inc.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]
<PAGE>
EXHIBIT 1.2
DRAFT 3/23/99
Apex Silver Mines Limited
Preference Shares, Warrants to Preference Shares, Depositary Shares
Warrants to Ordinary Shares, Ordinary Share Purchase Rights
and Debt Securities
Underwriting Agreement
New York, New York
[Date]
To the Representatives, named in Schedule I
to the applicable Terms Agreement, of the
Underwriters named in Schedule II to
the applicable Terms Agreement
Ladies and Gentlemen:
Apex Silver Mines Limited, a Cayman Islands corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule II to any applicable Terms Agreement (as defined below), for
whom you (the "Representatives") are acting as representatives, up to an
aggregate of $200,000,000 of its: (i) preference shares ("Preferred Shares"),
(ii) warrants to purchase Preferred Shares ("Preferred Warrants"), (iii)
depositary shares representing fractional shares of Preferred Shares
("Depository Shares"), (iv) warrants to purchase Ordinary Shares ("Ordinary
Warrants"), (v) Ordinary Share purchase rights ("Purchase Rights") and (vi) Debt
Securities, or any combination thereof, from time to time, in or pursuant to one
or more offerings, on terms to be determined at the time of sale. The form of
terms agreement for each subsequent offering is found in Annex A hereto.
The Preferred Shares, par value $.01 per share, will be issued in one
or more series and each series of Preferred Shares may vary, as applicable, as
to the title, specific number of shares, rank, liquidation preference, dividend
rate or rates, dividend payment dates, redemption provisions, sinking fund
requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable certificate of designation (each a "Certificate of Designation")
relating to such series of Preferred Shares. A series of Preferred Shares may
be represented by Depositary Shares that are evidenced by depositary receipts
(the "Depositary Receipts") issued pursuant to a deposit agreement (each a
"Deposit
<PAGE>
Agreement") among the Company, the depositary identified therein (the
"Depositary") and the registered holders of the Depositary Receipts issued
thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
______, ____ (the "Senior Indenture"), between the Company and Wilmington Trust
Company, as the trustee (the "Senior Trustee"), or as subordinated indebtedness
(the "Subordinated Debt Securities") under an indenture, dated as of _____,
_____ (the "Subordinated Indenture," and together with the Senior Indenture, the
"Indentures"), between the Company and Wilmington Trust FSB, as trustee (the
"Subordinated Trustee," and together with the Senior Trustee, the "Trustees").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principle amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions (and terms of the related Underlying
Securities) and any other variable established by or pursuant to the applicable
Indenture.
Each issue of Ordinary Warrants, Purchase Rights or Preferred Warrants
will be issued pursuant to a separate warrant agreement (each a "Warrant
Agreement") or a separate Ordinary Share purchase right agreement (each a
"Purchase Right Agreement") between the Company and the warrant agent identified
therein (each a "Warrant Agent"). The Ordinary Warrants, the Purchase Rights
and the Preferred Warrants may vary, as applicable, as to, among other terms,
title, type, specific number, exercise dates or periods, exercise prices,
expiration dates and terms of the related Underlying Securities.
The Preferred Shares, the Preferred Warrants, the Depositary Shares,
the Ordinary Warrants, the Purchase Rights, the Senior Debt Securities or the
Subordinated Debt Securities or any combination thereof, initially issuable by
the Company, are hereinafter referred to as the "Underwritten Securities."
"Underlying Securities" shall mean the Ordinary Shares, Depositary Shares or
Preferred Shares issuable upon exercise of an Ordinary Warrant, Preferred
Warrant or Purchase Right, as applicable, or upon conversion of the Preferred
Shares, Depositary Shares, Senior Debt Securities or Subordinated Debt
Securities, as applicable.
Whenever the Company determines to make an offering of Underwritten
Securities through the Underwriters, the Company will enter into an agreement
(each a "Terms Agreement") providing for the sale of such Underwritten
Securities to, and the purchase thereof, by the Underwriters. To the extent
there are no additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. The Terms Agreement relating to the offering of
Underwritten Securities shall specify the number or aggregate principle amount,
as the case may be, of Underwritten Securities to be issued and other terms
specific to the offer and sale of the applicable Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
proposes to grant to the Underwriters an option to purchase additional
Underwritten Securities to cover over-allotments, if any (the "Option
Securities"). The Underwritten Securities, together with any applcable Option
Securities, hereinafter referred to as the "Securities".
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Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act or
pursuant to Rule 462(d) under the Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I to the applicable Terms
Agreement) on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. The Company may have
filed one or more amendments or supplements thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: (1) after the
Effective Date of such registration statement, a final prospectus supplement
relating to the Securities in accordance with Rules 430A and 424(b), (2) prior
to the Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement) or
(3) a final prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such registration
statement and the Final Prospectus. As filed, such final prospectus supplement
or such amendment and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein) and on any date on which
Option Securities are purchased, if such date is
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not the Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective Date,
the Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, the Final Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
-------- -------
that the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The subsidiaries of the Company listed on Annex B hereto
(individually a "Significant Subsidiary" and collectively, the "Significant
Subsidiaries") are the only Significant Subsidiaries of the Company (within the
meaning of Rule 1-02 of Regulation S-X under the Act). The Company and each
Significant Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to own its
properties and conduct its business as described in the Final Prospectus, and is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification, except
where any failure to be so qualified would not individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
(d) All the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Final Prospectus,
all outstanding shares of capital stock of the Subsidiaries are owned directly
or indirectly by the Company free and clear of any perfected security interest
or any other security interests, claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set forth in
the Final Prospectus; the Ordinary Shares of the Company conform in all material
respects to the description thereof contained in the Final Prospectus; the
outstanding shares of Ordinary Shares have been duly and validly authorized and
issued and are fully paid and nonassessable; the holders of outstanding shares
of Ordinary Shares of the Company are not entitled to preemptive or other rights
to subscribe for Ordinary Shares or other securities of the Company; and, except
as set forth in the Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of Ordinary Shares of or
ownership interests in the Company are outstanding.
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<PAGE>
(f) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Shares and/or Depositary Shares,
such Underwritten Securities have been, or as of the date of the applicable
Terms Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and the applicable Terms Agreement.
The Preferred Shares, when issued and delivered by the Company pursuant to this
Underwriting Agreement and the applicable Terms Agreement against payment of the
consideration therefor, or for the related Depositary Shares, as the case may
be, specified in the applicable Terms Agreement, will be validly issued, fully
paid and non-assessable and will not be subject to preemptive or other similar
rights of any security holder of the Company. In addition, upon deposit by the
Company of any Preferred Shares represented by Depositary Shares with the
applicable Depositary of the Depositary Receipts evidencing such Depositary
Shares, in each case pursuant to the applicable Deposit Agreement, such
Depositary Shares will represent legal and valid interest in such Preferred
Shares. No holder of such Preferred Shares or Depositary Receipts evidencing
Depositary Shares is or will be subject to personal liability by reason of being
such a holder. The applicable Certificate if Designations will be in full force
and effect prior to the Closing Time.
(g) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Depositary Shares represented by Preferred
Shares [or if Debt Securities are convertible into Depositary Shares represented
by Preferred Shares], the applicable Deposit Agreement has been, or prior to the
issuance of such Depositary Shares will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and delivery,
will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance to its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles. Each registered holder of a
Depositary Receipt under the applicable Deposit Agreement will be entitled to
the proportional rights, preferences and limitations of the Preferred Shares
represented by the Depositary Shares evidenced by such Depositary Receipt and to
such other rights as are granted to such registered holder in such Deposit
Agreement.
(h) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities, such Underwritten Securities
have been, or as of the date of the applicable Terms Agreement will have been,
duly authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and the applicable Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided in the
applicable Indenture and delivered against payment of the consideration therefor
specified in the applicable Terms Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles, and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Debt Securities
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<PAGE>
denominated other than in United States dollars (or a foreign or composite
currency judgement in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant to the
applicable law or (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States. Such Underwritten Securities will
be in the form contemplated by, and each registered holder thereof is entitled
to the benefits of, the applicable Indenture.
(i) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if Preferred Shares are,
or Depositary Shares represented by Preferred Shares are, convertible into Debt
Securities, each applicable Indenture has been, or prior to the issuance of the
Debt Securities thereunder will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and delivery,
will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(j) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Warrants, Ordinary Warrants or
Purchase Rights such Underwritten Securities have been, or as of the date of the
applicable Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and the applicable
Terms Agreement. Such Underwritten Securities, when issued and authenticated in
the manner provided in the applicable Warrant Agreement or Purchase Right
Agreement and delivered against payment of the consideration therefor specified
in the applicable Terms Agreement, will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the applicable Warrant
Agreement or Purchase Right Agreement and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles.
(k) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Warrants, Ordinary Warrants or
Purchase Rights, each applicable Warrant Agreement or Purchase Right Agreement
has been, or prior to the issuance of such Underwritten Securities will have
been, duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(l) If the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Ordinary Shares, Preferred Shares or Depositary Shares, such Underling
Securities have been, or as of the date of the applicable Terms
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<PAGE>
Agreement will have been, duly authorized and reserved for issuance by the
Company upon exercise of the Ordinary Warrants, Preferred Warrants or upon
conversion of the related Preferred Shares, Depositary Shares or Debt
Securities, as applicable. If the Underlying Securities include Ordinary or
Preferred Shares, such underlying Securities, when issued upon such exercise or
conversion, as applicable, will be validly issued and fully paid and non-
assessable and will not be subject to preemptive or other similar rights of any
other security holder of the Company. If the Underlying Securities include
Depositary Shares, such Underlying Securities, upon deposit by the Company of
the Preferred Shares represented thereby with the applicable Deposit Agreement,
will represent legal and valid interests in such Preferred Shares. No holder of
such Ordinary Shares, Preferred Shares or Depositary Receipts evidencing
Depositary Shares or will be subject to personal liability by reason of being
such a holder. If the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include Debt
Securities, such Underlying Securities have been, or as of the date of such
Terms Agreement will have been, duly authorized for issuance by the Company upon
the conversion of the related Preferred Shares or Depositary Shares, as the case
may be. Such Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance with the
terms of the related Preferred Shares of Depositary Shares, as applicable, will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by general
equitable principles, and except further as enforcement thereof may be limited
by (A) requirements that a claim with respect to any Debt Securities denominated
other than in United States dollars (or a foreign or composite currency
judgement in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to the applicable law
or (B) governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(m) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and each applicable Indenture, Deposit Agreement and Warrant
Agreement, as of the date of the Prospectus, and any Underlying Securities, when
issued and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(n) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as required;
and the summaries of legal and regulatory matters and proceedings under the
headings ["Republic of Bolivia," "Description of Ordinary Shares" and "Title and
Ownership Rights" (under both of the "Development Project" and "Advanced
Exploration Properties" headings)] fairly summarize the matters therein
described.
(o) This Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and delivered by the
Company and constitutes, and
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<PAGE>
will constitute, a valid and binding obligation of the Company enforceable in
accordance with its terms.
(p) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(q) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities or Underlying
Securities, if any, by the Underwriters in the manner contemplated herein and in
the Final Prospectus.
(r) Neither the issue and sale of the Securities or Underlying
Securities, if any, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result
in a breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its subsidiaries or (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or bound
or to which their respective property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties, which
breach, violation or imposition would individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole.
(s) Except as set forth in the Final Prospectus, no holders of
securities of the Company have rights to the registration of such securities
under the Securities Act.
(t) The consolidated financial statements and schedules of the Company
and its consolidated subsidiaries included in the Final Prospectus and the
Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and the rules and regulations thereunder and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption[s] ["Selected
Consolidated Financial Data"] in the Final Prospectus and Registration Statement
fairly present, on the basis stated in the Final Prospectus and the Registration
Statement, the information included therein.
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<PAGE>
(u) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or their respective properties is pending or
threatened that (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to have a
material adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto) (except, in the case of this clause (ii),
for those that have been disclosed in the Final Prospectus).
(v) Except as set forth in the Final Prospectus, each of the Company
and each of its subsidiaries, owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted and the
Company directly or indirectly through its subsidiaries owns, leases or
possesses the rights to all properties as are necessary to explore, develop and
exploit the San Cristobal Project (as defined in the Final Prospectus) in
Bolivia, except where the failure to own, lease or possess the rights for any
property would not singularly or in the aggregate have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole.
(w) Except as set forth in the Final Prospectus, neither the Company
nor any subsidiary is in violation of any law, rule or regulation of any foreign
national, federal, state or local governmental or regulatory authority
applicable to it or is not in non-compliance with any term or condition of, or
has failed to obtain and maintain in effect, any license, certificate, permit,
registration, concession, franchise, or other governmental authorization
required for the ownership or lease of its property or the conduct of its
business, which violation, non-compliance or failure would individually or in
the aggregate have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus; and the Company has not received notice of any proceedings relating
to the revocation or material modification of any such license, certificate,
permit or other authorization.
(x) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, which violation or default would individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
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(y) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Final Prospectus, are independent public accountants
with respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(z) There are no transfer taxes or other similar fees or charges under
foreign national law, federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company or sale by the Company
of the Securities or Underlying Securities, if any, except as set forth in the
Final Prospectus or where the failure to pay any such taxes, fees or charges
would not individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(aa) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a material
adverse change in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as described in or as would not have a material adverse change in
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(bb) Except as set forth in the Final Prospectus, no labor dispute
with the employees of the Company or any of its subsidiaries exists or is
threatened or imminent that could result in a material adverse change in the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(cc) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse change in the
condition (financial or otherwise), prospects, earnings, business or properties
of the
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Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(dd) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the Final
Prospectus or where such prohibition would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(ee) The Company and its subsidiaries possess all certificates,
authorizations, registrations, qualifications, licenses, concessions, franchises
and permits issued by the appropriate federal, state, foreign national or local
regulatory authorities necessary to conduct their respective businesses as
presently conducted, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization, registration, qualification, license,
concession, franchise or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus.
(ff) Neither the Company nor any of its subsidiaries is in violation
of any federal, state, foreign national or local law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them under applicable
federal, state, foreign national and local occupational safety and health and
environmental laws and regulations to conduct their respective businesses as
presently conducted, and the Company and each such subsidiary is in compliance
with all terms and conditions of any such permit, license or approval, except
any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not, singly or in the
aggregate, result in a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus.
(gg) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in
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accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(hh) The Company's independent technical consultants [Kvaerner Metals,
Davy Nonferrous Division, Mine Reserves Associates Inc., Pincock, Allen & Holt,
Mineral Resources Development Inc., Knight Piesold LLC and Behre Dolbear] who
have affirmed and verified the proven and probable ore reserves located at the
San Cristobal Project as of ________, 1999 and as set forth in or incorporated
by reference in the Final Prospectus are experts (as such term is used in
Section 11 (b) (3) of the Act) in the field of mining engineering and have
consented to being named in the Registration Statement.
(ii) The information set forth in the Registration Statement and the
Final Prospectus relating to the proven and probable ore reserves located at the
San Cristobal Project as of ________, 1999 has been prepared materially in
accordance with methods generally applied in the mining industry and conforms in
all material respects to the rules and regulations of the Commission.
(jj) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on behalf of
the several Underwriters to the Cayman Islands or any political subdivision or
taxing authority thereof or therein purely as a direct consequence of the issue
of the Securities of the Underlying Securities, if any, by the Company to or for
the respective accounts of the several Underwriters for resale and delivery to
the initial purchasers thereof in the manner contemplated herein.
(kk) The Shareholders' Agreements dated July, 1996 by and among the
Company, Apex Silver Mines LDC, Consolidated Commodities Ltd., Mr. Thomas S.
Kaplan, Litani Capital Management LDC, Silver Holdings LDC and each shareholder
a signatory thereto have been duly authorized, executed and delivered and are
valid and binding obligations enforceable, against the parties thereto,
including, without limitation, the "Holdback" provisions of Section 7 thereto.
(ll) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company.
(mm) Subsequent to the respective dates as of which information is
given in the Final Prospectus, (i) the Company has not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction in the ordinary course of business (other than the transactions
contemplated by this Underwriting Agreement); (ii) the Company has not purchased
any of its outstanding Ordinary Shares, nor declared, paid or otherwise made any
dividend or distribution of any kind on its Ordinary Shares; and (iii) there has
not been any material change in the capital stock, short-term debt or long-term
debt of the Company, except in each case as described in the Final Prospectus.
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(nn) The Company owns or possesses all material patents, patent
applications, trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by it in
connection with its business, and the Company has not received any written
notice of infringement of, or conflict with, asserted rights of any third party
with respect to any of the foregoing which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company, except as described in or contemplated in
the Final Prospectus or Prospectus Supplement.
Any certificate signed by any officer or director of the Company and
any executive officer of Apex Corporation and delivered to the Representatives
or counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
------------------
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I to any applicable Terms Agreement, the amount of
Underwritten Securities set forth opposite such Underwriter's name in Schedule
II to the applicable Terms Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth on Schedule I to the applicable Terms
Agreement at the same purchase price per share as the Underwriters shall pay for
the Underwritten Securities. Said option may be exercised only to cover over-
allotments in the sale of the Underwritten Securities by the Underwriters. Said
option may be exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Final Prospectus upon written or
facsimile notice by the Representatives to the Company setting forth the number
of shares of the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. Delivery of certificates for the
shares of Option Securities by the Company, and payment therefor to the Company,
shall be made as provided in Section 3 hereof. The number of shares of the
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the second Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto, or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time
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<PAGE>
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the second business day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option), certificates for the Option Securities in such names and
denominations as the Representatives shall have requested for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the Representatives
on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the Representatives (A)
when the Registration Statement, if not effective at the Execution Time, shall
have become effective, (B) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any
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<PAGE>
Rule 462(b) Registration Statement shall have been filed with the Commission,
(C) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, (D) of
any request by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any additional information, (E) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (F) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (i) notify the
Representatives of such event, (ii) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the signed Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act or otherwise
required, as many copies of the Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Company will cooperate with the Representatives and counsel
for the Representatives in connection with endeavoring to obtain qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any fee of
the National Association of Securities Dealers, Inc., in connection with its
review of the offering; provided, however, that the Company shall not be
required to file any general consent to service of
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<PAGE>
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not otherwise so subject.
(f) Until the Business Day set forth on Schedule I to the applicable
Terms Agreement, the Company will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, or announce the offering of, any other shares of Ordinary Shares or
any securities convertible into, or exchangeable for, shares of Ordinary Shares;
provided, however, that the Company may issue and sell Ordinary Shares pursuant
to any stock option plan, stock ownership plan or dividend reinvestment plan of
the Company in effect at the Execution Time or pursuant to the Buy-Sell
Agreement as disclosed in the Final Prospectus.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(h) If the applicable Terms Agreement specifies that any related
Underlying Securities include Ordianry Shares, Preferred Shares and/or
Depositary Shares, the Company will reserve and keep available at all times,
free of preemptive or other similar rights, a sufficient number of shares of
Ordinary Shares and/or Preferred Shares, as applicable, for the purpose of
enabling the Company to satisfy any obligations to issue such Underlying
Securities upon the exercise of the related Ordinary Warrant, Preferred Warrant
or Purchase Right, as applicable, or upon the conversion of Preferred Shares,
Depositary Shares, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
(i) The Company will use its best efforts to effect the listing of the
Securities and any related Underlying Securities, prior to the Closing Time, on
the American Stock Exchange (or any other securities exchange or quotation
system) if and as specified in the applicable Terms Agreement.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, pursuant to the applicable Terms
Agreement, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
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<PAGE>
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM New
York City time, on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus,
and any such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of W.S. Walker & Company, Cayman Islands counsel for the Company, dated
the Closing Date, to the effect that:
(i) Each of the Company and its subsidiaries that are
incorporated under the laws of the Cayman Islands (individually a "Cayman
Subsidiary" and collectively the "Cayman Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Cayman Islands, with full corporate power and
authority to own its properties and conduct its business as described in
the Final Prospectus;
(ii) All the outstanding shares of capital stock of each Cayman
Subsidiary have been duly and validly authorized and issued and are fully
paid and, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Cayman Subsidiaries are owned,
directly or indirectly, by the Company free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or encumbrances;
(iii) The outstanding shares of Ordinary Shares have been duly
and validly authorized and issued and are fully paid; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and the
liability of a shareholder in respect of such Securities is limited to the
amount that the shareholder has agreed to pay for such Securities and the
Company cannot call for additional sums to be paid by the shareholders in
respect of such Shares;
(iv) If any of the Securities being sold pursuant to the
applicable Terms Agreement include Preferred Shares and/or Depositary
Shares, such Securities or Underlying Securities have been duly authorized
by the Company for issuance and sale pursuant to the Underwriting Agreement
and the applicable Terms Agreement. The Preferred Shares, when issued and
delivered by the Company pursuant to the terms of the Underwriting
Agreement and the applicable Terms Agreement against payment of the
consideration specified for the Preferred Shares or for the related
Depositary Shares in the applicable Terms Agreement,
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<PAGE>
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any security holder of the
Company. In addition, upon deposit by the Company of any Preferred Shares
represented by Depositary Shares with the applicable Depositary and the
execution and delivery of such Depositary of the Depositary Receipts
evidencing such Depositary Shares, in each case pursuant to the applicable
Depositary Agreement, such Depositary Shares will represent legal and valid
interests in such Preferred Shares. No holder of such Preferred Shares or
Depositary Receipts evidencing such Depositary Shares is or will be subject
to personal liability by reason of being such a holder. The form of
certificate used to evidence the Preferred or Depositary Receipts
evidencing Depositary Shares is in due and proper form and complies with
the applicable statutory requirements, with any applicable requirements of
the charter of by-laws of the Company and with the requirements of the
American Stock Exchange. The applicable Certificate of Designations is in
full force and effect;
(v) If any of the Securities being sold pursuant to the
applicable Terms Agreement include Depositary Shares, the applicable
Deposit Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. Each
registered holder of a Depositary Receipt under the applicable Deposit
Agreement will be entitled to the proportional rights, preferences and
limitations of the Preferred Shares represented by the Depositary Shares
evidenced by such Depositary Receipt and to such other rights as are
granted to such registered holder in such Deposit Agreement;
(vi) If any of the Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities, such Debt Securities
have been authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Securities
when issued and authenticated in the manner provided for in the applicable
Indenture and delivered by the Company pursuant to the terms of the
Underwriting Agreement and the applicable Terms agreement against payment
of the consideration therefor specified in the applicable Terms Agreement,
will be validly and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles, and except further as
enforcement thereof may be limited by (A) requirements that a claim with
respect to any Debt Securities denominated other than in United States
dollars (or a foreign or composite currency judgement in respect of such
claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to the applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Securities will be in the
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form contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture;
(vii) If any of the Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if Preferred Shares
or Depositary Shares represented by Preferred Shares are, convertible into
Debt Securities, each applicable Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles;
(viii) If any of the Securities being sold pursuant to the
applicable Terms Agreement include Ordinary Warrants, Preferred Warrants or
Purchase Rights, such Securities have been authorized by the Company for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Securities when issued and authenticated in the
manner provided for in the applicable Warrant or Purchase Right Agreement
and delivered by the Company pursuant to the terms of the Underwriting
Agreement and the applicable Terms agreement against payment of the
consideration therefor specified in the applicable Terms Agreement, will be
validly and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or
by general equitable principles;
(x) If any of the Securities being sold pursuant to the
applicable Terms Agreement include Ordinary Warrants, Preferred Warrants or
Purchase Rights, each applicable Warrant Agreement or Purchase Right
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
(xi) If the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Ordinary Shares, Preferred Shares or Depositary Shares, such Underlying
Securities have been duly authorized and reserved for issuance by the
Company upon exercise of the Ordinary Warrants, Preferred Warrants or upon
conversion of the related Preferred Shares, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities, as applicable. The Underlying
Securities, when issued upon such exercise or conversion, as applicable,
will be validly issued and fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any other security holder
of the Company. No holder of the Underlying Securities will be subject to
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personal liability by reason of being such a holder. In addition, the
Underlying Securities, upon deposit by the Company of the Preferred Shares
represented thereby with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Underlying Securities, in each case pursuant to the applicable Deposit
Agreement, will represent legal and valid interests in such Preferred
Shares. If the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Senior Debt Securities or Subordinated Debt Securities, such Underlying
Securities have been duly authorized for issuance by the Company upon the
conversion of the related Preferred Shares or Depositary Shares, as the
case may be. Such Underlying Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered in
accordance with the terms of the related Preferred Shares of Depositary
Shares, as applicable, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles,
and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Debt Securities denominated
other than in United States dollars (or a foreign or composite currency
judgement in respect of such claim) be converted into United States dollars
at a rate of exchange prevailing on a date determined pursuant to the
applicable law or (B) governmental authority to limit, delay or prohibit
the making of payments outside the United States;
(xii) The Securities being sold pursuant to the applicable
Terms Agreement and each of the applicable Indenture, Deposit Agreement,
Ordinary Warrant Agreement, Preferred Warrant Agreement or Purchase Right
Agreement conform, and any Underlying Securities, when issued and delivered
in accordance with the terms of the related Underwritten Securities, will
conform, in all material respects to the statements relating thereto
contained in the Final Prospectus and are in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement;
(xiii) this Agreement, and the applicable Terms Agreement,
have been duly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligations of the Company;
(xiv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Cayman Subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately disclosed
in the Final Prospectus; and the summaries of legal and regulatory matters
and proceedings under the heading "Description of Ordinary Shares" fairly
summarize the matters therein described;
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<PAGE>
(xv) neither the issue and sale of the Underwritten Securities
and any Underlying Securities, nor the consummation of any other of the
transactions contemplated herein nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or the Cayman Subsidiaries pursuant to, (i) the Memorandum and
Articles of Association of the Company or the Cayman Subsidiaries or (ii)
any statute, law, rule, regulation, judgment, order or decree applicable to
the Company or the Cayman Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or the Cayman Subsidiaries or any of
its or their respective properties, except where such breach, violation or
imposition would not individually or in the aggregate have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken
as a whole;
(xvi) the Company's agreement to the choice of law provisions
set forth in Section 14 hereof will be recognized by the courts of the
Cayman Islands; the Company can sue and be sued in its own name under the
laws of the Cayman Islands, the irrevocable submission of the Company to
the non-exclusive personal jurisdiction of a New York Court, the waiver by
the Company of any objection to the venue of a proceeding of a New York
Court and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the State of New
York are legal, valid and binding; and judgment obtained in a New York
Court arising out of or in relation to the obligations of the Company under
this Agreement, not being a sum payable in respect of taxes or other
charges of a like nature or a fine or other penalty, is enforceable against
the Company in the courts of the Cayman Islands; and
(xvii) the Company is not entitled to any immunity on the basis
of sovereignty or otherwise in respect of its obligations under this
Agreement and could not successfully interpose any such immunity as a
defense in any suit or action brought or maintained in respect of its
obligations under this Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the laws of the
Cayman Islands, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Reference to the Final Prospectus
in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel for the Company,
dated the Closing Date, to the effect that:
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(i) each subsidiary of the Company incorporated in the United
States (individually a "Domestic Subsidiary" and collectively the "Domestic
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where such breach, violation or imposition would
not individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of each Domestic
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Domestic
Subsidiaries are owned by the Company, directly or indirectly, free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens or
encumbrances;
(iii) if required by the applicable Terms Agreement, the
Securities being sold hereunder by the Company, and any related Underlying
Securities, are duly listed and admitted for trading, subject to official
notice of issuance, on the American Stock Exchange; and, except as set
forth in the Final Prospectus, to such counsel's knowledge, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any securities
for, shares of Ordinary Shares or ownership interests in the Company are
outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other document of
a character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; the descriptions contained in the Final Prospectus under
the heading "Taxation" constitute fair summaries of those statues and
regulations discussed therein applicable to the offering of the Securities;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Pro spectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or threatened
and the Registration Statement and the Final Prospectus (other than the
financial statements and other financial
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information contained therein, as to which such counsel need not express
any opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe that on the Effective
Date or at the Execution Time the Registration Statement contains or
contained any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final Prospectus as of
their date and on the Closing Date include any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to which
such counsel need not express any opinion);
(vi) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended;
(vii) to such counsel's knowledge, no consent, approval,
authorization, filing with or order of any court or governmental agency or
body is required in connection with the transactions contemplated herein,
except such as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction (and the securities laws of any
jurisdiction outside the United States) in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(viii) to such counsel's knowledge, neither the issue and sale
of the Securities, nor the consummation of any other of the transactions
contemplated herein nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its subsidiaries
pursuant to, (i) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument, filed as a material contract
by the Company under the Exchange Act, to which the Company or its
subsidiaries is a party or bound or to which their respective property is
subject, or (ii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its subsidiaries or
any of its or their respective properties, except where such breach,
violation or imposition would not individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole; and
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(ix) Except as set forth in the Final Prospectus, to such
counsel's knowledge, no holders of securities of the Company have rights to
the registration of such securities under the Securities Act.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Reference to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(d) The Company shall have furnished to the Representatives the
opinion of Quintanilla & Soria, Bolivian counsel for the Company, dated the
Closing Date, with respect to matters of title and to corporate status in
Bolivia and other related matters as the Representatives may reasonably require.
(e) The Company shall have furnished to the Representatives the
opinion of Bufete Gutierrez-Falla, Honduran counsel for the Company, dated the
Closing Date, with respect to matters of title and to corporate status in
Honduras and other related matters as the Representatives may reasonably
require.
(f) The Company shall have furnished to the Representatives the
opinion of _______________, Mexican counsel for the Company, dated the Closing
Date, with respect to matters of title and to corporate status in Mexico and
other related matters as the Representatives may reasonably require.
(g) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Company and the Vice
President of Finance and Chief Financial Officer of Apex Corporation, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the
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Closing Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive of
any supplement thereto), there has been no material adverse change in the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(i) At the Execution Time and at the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives letters,
dated respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations thereunder;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under Statement on
Auditing Standards No. 71 of the unaudited interim financial information
for the ______ month period ended _________, 1999 and as at _________,
1999, incorporated by reference into the Registration Statement and the
Final Prospectus; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the meetings
of the stockholders, directors and audit committees of the Company and the
Subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to December 31, 1998,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act
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and with the related rules and regulations of the Commission with
respect to registration statements on Form S-3; and said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to _________,
1999, there were any changes, at a specified date not more than five
days prior to the date of the letter, in the accumulated deficit of
the Company and its subsidiaries, long-term debt or capital stock of
the Company or decreases in the shareholders' equity of the Company as
compared with the amounts shown on the _________, 1999, consolidated
balance sheet included in the Registration Statement and the Final
Prospectus, or for the period from _________, 1999 to such specified
date there were any decreases, as compared with the corresponding
period in the preceding year; in net revenues, interest income or in
total or per share amounts of net income or interest income of the
Company and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives;
(3) the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information) and Item 402 (Executive
Compensation) is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement, including, but
not limited to, the information set forth under the captions "Summary Operating
and Financial Information" and "Selected Financial Information" in the Final
Prospectus, the information included or incorporated by reference in Items 1, 2,
6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
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(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (i) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole reasonable judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(k) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Annex C hereto from each
director of the Company and each executive officer of Apex Corporation addressed
to the Representatives, in which each such person agrees not to offer, sell,
contract to sell, pledge or otherwise dispose of, or file a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act with respect to, any shares of
Ordinary Shares of the Company or any securities convertible into or exercisable
or exchangeable for such Ordinary Shares, or publicly announce an intention to
effect any such transaction, for a period of [180 days] after the date of this
Agreement, other than (i) any shares of Ordinary Shares to be sold hereunder,
(ii) any option or warrant or the conversion of a security outstanding on the
date hereof and referred to in the Prospectus to which this Agreement relates
and (iii) other than shares of Ordinary Shares disposed of as bona fide gifts
approved by Salomon Smith Barney Inc.
(l) On the Closing Date, the Underwritten Securities shall have the
ratings accorded by any "nationally recognized statistical rating organization,"
as defined by the Commission for the purpose of Rule 436(g)(2) of the Act, if
and as specified in the applicable Terms Agreement, and the Company shall have
delivered to Salomon Smith Barney Inc. a letter, dated as of such date, from
each such rating organization, or other evidence satisfactory to Salomon Smith
Barney Inc., confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in the rating assigned to the Underwritten Securities or
any of the Company's other securities by any such rating organization, and no
such rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of the
Company's other securities.
(m) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
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If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Akin, Gump, Strauss, Hauer & Feld, L.L.P., counsel
for the Company, at 590 Madison Avenue, New York, New York, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided pursuant to the applicable Terms Agreement is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally through Salomon Smith Barney Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity with
respect to any Basic Prospectus or Preliminary Final Prospectus shall not inure
to
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the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting such loss, claim, damage, or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Preliminary Final Prospectus (or the Final Prospectus as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such Basic
Prospectus or Preliminary Final Prospectus was corrected in the Final Prospectus
(or the Final Prospectus as so amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding delivery
of the Securities, the stabilization legend in block capital letters on page
____ and, under the heading "Underwriting," (ii) the sentences related to
concessions and reallowances and the paragraph related to stabilization in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than pursuant to the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include
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<PAGE>
both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other hand from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
-------- -------
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Underwriters on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this
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Section 8, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement, and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II to any applicable Terms
Agreement bears to the aggregate principal amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate principal amount of Securities
- -------
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Securities set forth in
Schedule II to any applicable Terms Agreement, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Ordinary Shares shall have been suspended
by the Commission or the American Stock Exchange or trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market shall have been suspended or limited or minimum prices shall
have been established on either of such Exchanges or the Nasdaq Stock Market,
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
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11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Salomon Smith Barney Inc. General Counsel (fax
no.: (212) 816-7912) and confirmed to the General Counsel, care of Salomon Smith
Barney Inc., at 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Keith Hulley (facsimile number (303) 839-5907 and confirmed to him
at Apex Silver Mines Corporation, 1700 Lincoln Street, Suite 3050, Denver,
Colorado 80203, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the state of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
---------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
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"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Apex Silver Mines Limited
By: ______________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule II hereof.
Salomon Smith Barney Inc.
[name of co-manager, if any]
By: _______________________
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule II to the foregoing
Agreement.
-34-
<PAGE>
ANNEX A
-------
TERMS AGREEMENT
To: Apex Silver Mines Limited
One Norwest Centre, Suite 3050
1700 Lincoln Street
Denver, Colorado 80203
Ladies and Gentlemen:
We understand that Apex Silver Mines Limited, a Cayman Islands
corporation (the "Company"), proposes to sell to the several underwriters named
in Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, [_____ Preferred Shares] [in the form of
Depositary Shares each representing _____ of a Preferred Share] [$____ aggregate
principle amount of its [Senior][Subordinated] Debt Securities] [_________
Ordinary Warrants to purchase Ordinary Shares, par value $.01 per share]
[_______ Preferred Warrants to purchase Preferred Shares]. Subject to the terms
and conditions set forth in Schedule I hereto, the Underwriters set forth on
Schedule II hereto, offer to purchase, severally and not jointly, the [number]
[principle amount] of Underwritten Securities opposite their names as set forth
on Schedule II hereto and a proportionate amount of Option Securities as set
forth on Schedule II, to the extent any option to Option Securities is
exercised.
All of the provisions contained in any schedule to this Terms
Agreement are hereby incorporated by reference in their entirety into this
Terms Agreement and shall be deemed part of this Terms Agreement to the same
extent as if such provisions had been set forth herein. Terms used in this
Terms Agreement shall have the meanings ascribed to them in the Underwriting
Agreement or in any schedule to this Terms Agreement.
Please accept this offer no later than ____ [a.m.] [p.m.] (New York
City time) on [Date] by signing a copy of this Terms Agreement and returning it
to us.
Very truly yours,
SALOMON SMITH BARNEY INC.
By: ___________________________
Name:
Title:
-35-
<PAGE>
Accepted:
APEX SILVER MINES LIMITED
By: ___________________
Name:
Title:
-36-
<PAGE>
SCHEDULE I
----------
Terms for [Preferred Shares]
Underwriting Agreement dated: [Date]
Registration Statement No.: [ ]
Representatives: Salomon Smith Barney Inc.
Title, Purchase Price and Description of Securities:
Title:
Rank:
Ratings:
Number of Preferred Shares:
Number of Option Securities:
Dividend [rate] [formula] per Preferred Share:
Dividend payment dates:
Stated value:
Liquidation preference per Preferred Share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Price to the Public per Preferred Share:
Price to the Public -- total:
Underwriting Discount per Share:
Underwriting Discount -- total
Proceeds to the Company per Share:
Proceeds to the Company -- total:
Other terms and conditions:
Closing Date, Time and Location: [Date] at [Time]
Type of Offering: [Delayed] [Non-delayed]
Date referred to in Section [5(f)] after which the Company may offer or sell
securities issued or guaranteed by the company without the consent of the
Representatives: [ ] days after the Execution Time.
-37-
<PAGE>
Modification of items to be covered by the letter from PricewaterhouseCoopers
LLP delivered pursuant to Section [6(e)] at the Execution Time: [ ].
-38-
<PAGE>
Terms for [Depositary Shares]
Underwriting Agreement dated: [Date]
Registration Statement No.: [ ]
Representatives: Salomon Smith Barney Inc.
Title, Purchase Price and Description of Securities:
Title:
Fraction of Preferred Share represented:
Ratings:
Rank:
Number of Depositary Shares:
Number of Option Securities:
Dividend [rate] [formula] per Depositary Share:
Dividend payment dates:
Liquidation preference per Depositary Share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Price to the Public per Depositary Share:
Price to the Public -- total:
Underwriting Discount per Depositary Share:
Underwriting Discount -- total
Proceeds to the Company per Depositary Share:
Proceeds to the Company -- total:
Other terms and conditions:
Closing Date, Time and Location: [Date] at [Time]
Type of Offering: [Delayed] [Non-delayed]
Date referred to in Section [5(f)] after which the Company may offer or sell
securities issued or guaranteed by the company without the consent of the
Representatives: [ ] days after the Execution Time.
Modification of items to be covered by the letter from PricewaterhouseCoopers
LLP delivered pursuant to Section [6(e)] at the Execution Time: [ ].
-39-
<PAGE>
Terms for [Debt Securities]
Underwriting Agreement dated: [Date]
Registration Statement No.: [ ]
Representatives: Salomon Smith Barney Inc.
Title, Purchase Price and Description of Securities:
Title:
Rank:
Ratings:
Aggregate principle amount:
Denominations:
Currency of payment:
Interest rate formula:
Interest payment dates:
Regular record dates:
Stated maturity dates:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Price to the Public per Debt Security:
Price to the Public -- total:
Underwriting Discount per Debt Security:
Underwriting Discount -- total
Proceeds to the Company per Debt Security:
Proceeds to the Company -- total:
Form:
Other terms and conditions:
Closing Date, Time and Location: [Date] at [Time]
Type of Offering: [Delayed] [Non-delayed]
Date referred to in Section [5(f)] after which the Company may offer or sell
securities issued or guaranteed by the company without the consent of the
Representatives: [ ] days after the Execution Time.
-40-
<PAGE>
Modification of items to be covered by the letter from PricewaterhouseCoopers
LLP delivered pursuant to Section [6(e)] at the Execution Time: [ ].
-41-
<PAGE>
Terms for [[Ordinary] [Preferred] Warrants [Purchase Rights]]
Underwriting Agreement dated: [Date]
Registration Statement No.: [ ]
Representatives: Salomon Smith Barney Inc.
Title, Purchase Price and Description of Securities:
Title:
Type:
Number:
Warrant or Purchase Right Agent:
Issuable jointly with [Ordinary Shares] [Preferred Shares] [Debt
Securities]:
Number of [Ordinary] [Preferred] Warrants issued per Underwritten Security:
Dates from or during which [[Ordinary] [Preferred] Warrants [Purchase
Rights] exercisable:
Expiration date:
Exercise price:
Price to the Public per Debt Security:
Price to the Public -- total:
Underwriting Discount per Debt Security:
Underwriting Discount -- total
Proceeds to the Company per Debt Security:
Proceeds to the Company -- total:
Title of Underlying Security:
[Number] [principal amount] of Underlying Securities per [[Ordinary]
[Preferred] Warrant [Purchase Right]:
Other terms and conditions:
Closing Date, Time and Location: [Date] at [Time]
Type of Offering: [Delayed] [Non-delayed]
Date referred to in Section [5(f)] after which the Company may offer or sell
securities issued or guaranteed by the company without the consent of the
Representatives: [ ] days after the Execution Time.
Modification of items to be covered by the letter from PricewaterhouseCoopers
LLP delivered pursuant to Section [6(e)] at the Execution Time: [ ].
-42-
<PAGE>
SCHEDULE II
-----------
<TABLE>
<CAPTION>
Underwriters Number if Maximum Number Maximum Total
Underwritten of Option Securities Number of
Securities to be Available to be Securities Available
Purchased Purchased to be Purchased
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Salomon Smith
Barney Inc.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total
- --------------------------------------------------------------------------------
</TABLE>
-43-
<PAGE>
ANNEX B
-------
Significant Subsidiaries
<TABLE>
<CAPTION>
Name Jurisdiction
- ------ ------------
<S> <C>
1. Apex Silver Mines LDC Cayman Islands
2. ASM Holdings Limited Cayman Islands
3. Apex Silver Mines Corporation Delaware, USA
4. Apex Partners LDC Cayman Islands
5. Andean Silver Corporation Cayman Islands
6. ASC Peru LDC Cayman Islands
7. ASC Partners LDC Cayman Islands
8. ASC Bolivia LDC Cayman Islands
9. Apex Asia LDC Cayman Islands
10. 'JSC' Kumushtak Kyrghyzstan
11. Kumushtak Management Company Kyrghyzstan
12. 'Asgadmongu' Company Ltd. Mongolia
13. Kanimansur LTD Mining Joint Venture (Formation Pending) Tajikistan
14. Minera de Cordilleras, S. de R.L. Honduras
15. Cordilleras Silver Mines Ltd. Bahamas
16. Cordilleras Silver Mines LDC Cayman Islands
17. Minera de Cordilleras, S. de R.L. de C.V. Mexico
18. Compania Minerales de Zacatecas, S. de R.L. de C.V. Mexico
19. Compania Metalurgica Baronse, S. de R.L. de C.V. Mexico
20. Compania Metalurgica Largo, S. de R.L. de C.V. Mexico
21. SMRL Dorita I de Ica (Formation Pending) Peru
</TABLE>
-44-
<PAGE>
ANNEX C
-------
[Letterhead of director of the Company or executive officer of Apex Corporation]
Apex Silver Mines Limited
-------------------------
Public Offering of Underwritten Securities
------------------------------------------
____________, ____
Salomon Smith Barney Inc.
[ ]
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Apex Silver Mines
Limited, a Cayman Islands corporation (the "Company"), and each of you as
representatives of a group of Underwriters named on Schedule II to the
applicable Terms Agreement, relating to a public offering of the Underwritten
Securities of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement and the applicable Terms Agreement, the undersigned will
not, without the prior written consent of Salomon Smith Barney Inc., offer,
sell, contract to sell, pledge or otherwise dispose of, or file a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act with respect to, any shares of
capital stock of the Company or any securities convertible into or exercisable
or exchangeable for such capital stock, or publicly announce an intention to
effect any such transaction, for a period of [180] days after the date of this
Agreement, other than (i) any shares of Ordinary Shares to be sold pursuant to
the applicable Terms Agreement, (ii) any option or warrant or the conversion of
a security outstanding on the date hereof and referred to in the Prospectus to
which this Agreement relates and (iii) shares of Ordinary Shares disposed of as
bona fide gifts approved by Salomon Smith Barney Inc.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement and the applicable
Terms Agreement), this Agreement shall likewise be terminated.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]
-45-
<PAGE>
Exhibit 4.1
__________________________________________________________________
APEX SILVER MINES LIMITED
and
__________________
as Trustee
_____________________
INDENTURE
Dated as of _________
_____________________
Providing for the Issuance of
Debt Securities in Series
__________________________________________________________________
<PAGE>
APEX SILVER MINES LIMITED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE PROVISIONS*
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- ------------------
<S> <C>
Section 310 (a)(1)....................... 7.9
(a)(2)....................... 7.9
(a)(3) Not Applicable
(a)(4)....................... Not Applicable
(b).......................... 7.8
7.10
Section 311 (a).......................... 7.13(a)
7.13(c)
(b).......................... 7.13(b)
(b)(2)....................... 8.3(a)(2)
8.3(b)
Section 312 (a).......................... 8.1
8.2(a)
(b).......................... 8.2(b)
(c).......................... 8.2(c)
Section 313 (a).......................... 8.3(a)
(b).......................... 8.3(b)
(c).......................... 8.3(d)
(d).......................... 8.3(c)
Section 314 (a).......................... 8.4
(b).......................... Not Applicable
(c)(1)....................... 1.2
(c)(2)....................... 1.2
(c)(3)....................... Not Applicable
(d).......................... Not Applicable
(e).......................... 1.2
</TABLE>
_________________________
*This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
<PAGE>
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- ------------------
<S> <C>
Section 315 (a).......................... 7.1(a)
(b).......................... 7.2
8.3(a)(6)
(c).......................... 7.1(b)
(d).......................... 7.1(c)
(d)(1)....................... 7.1(a)
(d)(2)....................... 7.1(c)(2)
(d)(3)....................... 7.1(c)(3)
(e).......................... 6.14
Section 316 (a).......................... 1.1
(a)(1)(A).................... 6.2
6.12
(a)(1)(B).................... 6.13
(a)(2)....................... Not Applicable
(b).......................... 6.8
Section 317 (a)(1)....................... 6.3
(a)(2)....................... 6.4
(b).......................... 11.3
Section 318 (a).......................... 1.7
</TABLE>
iii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................................ 1
SECTION 1.1 DEFINITIONS........................................................................... 1
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.................................................. 10
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE................................................ 11
SECTION 1.4 ACTS OF HOLDERS....................................................................... 11
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY................................................. 14
SECTION 1.6 NOTICE TO HOLDERS; WAIVER............................................................. 14
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT..................................................... 15
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.............................................. 15
SECTION 1.9 SUCCESSORS AND ASSIGNS................................................................ 15
SECTION 1.10 SEPARABILITY CLAUSE................................................................... 16
SECTION 1.11 BENEFITS OF INDENTURE................................................................. 16
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS.............. 16
SECTION 1.13 GOVERNING LAW......................................................................... 16
SECTION 1.14 LEGAL HOLIDAYS........................................................................ 16
SECTION 1.15 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED....................................... 16
SECTION 1.16 PAYMENT TO BE IN PROPER CURRENCY...................................................... 17
SECTION 1.17 LANGUAGE OF NOTICES, ETC.............................................................. 17
SECTION 1.18 CHANGES IN EXHIBITS................................................................... 17
SECTION 1.19 COUNTERPART ORIGINALS................................................................. 17
ARTICLE TWO ISSUANCE OF SECURITIES......................................................................... 18
SECTION 2.1 CREATION OF SECURITIES IN AMOUNT UNLIMITED............................................ 18
SECTION 2.2 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF SECURITIES OTHER THAN MEDIUM-TERM
DEBT SECURITIES...................................................................... 18
ARTICLE THREE ISSUANCE OF MEDIUM-TERM DEBT SECURITIES...................................................... 22
SECTION 3.1 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF MEDIUM-TERM DEBT SECURITIES......... 22
SECTION 3.2 FORM OF MEDIUM-TERM DEBT SECURITIES................................................... 27
ARTICLE FOUR THE SECURITIES................................................................................ 27
SECTION 4.1 FORM AND DENOMINATION................................................................. 27
SECTION 4.2 EXECUTION, DELIVERY, DATING AND AUTHENTICATION........................................ 27
SECTION 4.3 TEMPORARY SECURITIES.................................................................. 30
SECTION 4.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE................................... 32
SECTION 4.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...................................... 35
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 4.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED........................................ 36
SECTION 4.7 PERSONS DEEMED OWNERS................................................................. 37
SECTION 4.8 CANCELLATION.......................................................................... 37
SECTION 4.9 COMPUTATION OF INTEREST............................................................... 38
SECTION 4.10 CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES............................... 38
SECTION 4.11 SECURITIES IN GLOBAL FORM............................................................. 43
SECTION 4.12 CUSIP, ISIN AND COMMON CODE NUMBERS................................................... 45
ARTICLE FIVE SATISFACTION AND DISCHARGE.................................................................... 46
SECTION 5.1 SATISFACTION AND DISCHARGE OF INDENTURE IN RESPECT OF ANY SERIES OF SECURITIES........ 46
SECTION 5.2 APPLICATION OF TRUST MONEY............................................................ 47
SECTION 5.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES.................... 47
SECTION 5.4 REINSTATEMENT......................................................................... 50
SECTION 5.5 DEFINITIONS........................................................................... 50
ARTICLE SIX REMEDIES....................................................................................... 51
SECTION 6.1 EVENTS OF DEFAULT..................................................................... 51
SECTION 6.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.................................... 52
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE....................... 53
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM...................................................... 54
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES........................... 55
SECTION 6.6 APPLICATION OF MONEY COLLECTED........................................................ 55
SECTION 6.7 LIMITATION ON SUITS................................................................... 56
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST............. 57
SECTION 6.9 RESTORATION OF RIGHTS AND REMEDIES.................................................... 57
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE........................................................ 57
SECTION 6.11 DELAY OR OMISSION NOT WAIVER.......................................................... 57
SECTION 6.12 CONTROL BY HOLDERS.................................................................... 57
SECTION 6.13 WAIVER OF PAST DEFAULTS............................................................... 58
SECTION 6.14 UNDERTAKING FOR COSTS................................................................. 58
SECTION 6.15 WAIVER OF USURY, STAY OR EXTENSION LAWS............................................... 59
ARTICLE SEVEN THE TRUSTEE.................................................................................. 59
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES................................................... 59
SECTION 7.2 NOTICE OF DEFAULTS.................................................................... 60
SECTION 7.3 CERTAIN RIGHTS OF TRUSTEE............................................................. 60
SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES................................ 62
SECTION 7.5 MAY HOLD SECURITIES................................................................... 62
</TABLE>
v
<PAGE>
<TABLE>
<S> <C>
SECTION 7.6 MONEY HELD IN TRUST................................................................... 62
SECTION 7.7 COMPENSATION AND REIMBURSEMENT........................................................ 62
SECTION 7.8 DISQUALIFICATION; CONFLICTING INTERESTS............................................... 63
SECTION 7.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY............................................... 63
SECTION 7.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..................................... 64
SECTION 7.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................ 66
SECTION 7.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS........................... 67
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..................................... 67
SECTION 7.14 JUDGMENT CURRENCY..................................................................... 67
SECTION 7.15 APPOINTMENT OF AUTHENTICATING AGENT................................................... 68
ARTICLE EIGHT HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................................ 70
SECTION 8.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS............................. 70
SECTION 8.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS................................ 70
SECTION 8.3 REPORTS BY TRUSTEE.................................................................... 71
SECTION 8.4 REPORTS BY COMPANY.................................................................... 71
ARTICLE NINE CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER................................................. 72
SECTION 9.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.................................. 72
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED.......................................................... 72
ARTICLE TEN SUPPLEMENTAL INDENTURES........................................................................ 73
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS................................... 73
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...................................... 74
SECTION 10.3 EXECUTION OF SUPPLEMENTAL INDENTURES................................................. 76
SECTION 10.4 EFFECT OF SUPPLEMENTAL INDENTURES.................................................... 76
SECTION 10.5 CONFORMITY WITH TRUST INDENTURE ACT.................................................. 76
SECTION 10.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES................................... 77
ARTICLE ELEVEN COVENANTS................................................................................... 77
SECTION 11.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST........................................... 77
SECTION 11.2 MAINTENANCE OF OFFICE OR AGENCY...................................................... 77
SECTION 11.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.................................... 78
SECTION 11.4 STATEMENT BY OFFICERS AS TO DEFAULT.................................................. 80
SECTION 11.5 ADDITIONAL AMOUNTS................................................................... 80
</TABLE>
vi
<PAGE>
<TABLE>
<S> <C>
ARTICLE TWELVE REDEMPTION OF SECURITIES.................................................................... 81
SECTION 12.1 APPLICABILITY OF ARTICLE.............................................................. 81
SECTION 12.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE................................................. 81
SECTION 12.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..................................... 82
SECTION 12.4 NOTICE OF REDEMPTION.................................................................. 82
SECTION 12.5 DEPOSIT OF REDEMPTION PRICE........................................................... 83
SECTION 12.6 SECURITIES PAYABLE ON REDEMPTION DATE................................................. 83
SECTION 12.7 SECURITIES REDEEMED IN PART........................................................... 84
ARTICLE THIRTEEN SINKING FUNDS............................................................................. 84
SECTION 13.1 APPLICABILITY OF ARTICLE.............................................................. 84
SECTION 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES................................. 85
SECTION 13.3 REDEMPTION OF SECURITIES FOR SINKING FUND............................................. 85
ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES......................................................... 85
SECTION 14.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED............................................. 85
SECTION 14.2 CALL, NOTICE AND PLACE OF MEETINGS.................................................... 85
SECTION 14.3 PERSONS ENTITLED TO VOTE AT MEETINGS.................................................. 86
SECTION 14.4 QUORUM; ACTION........................................................................ 86
SECTION 14.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS................... 87
SECTION 14.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS....................................... 88
</TABLE>
EXHIBIT A [Reserved]
EXHIBIT B.1 Form of Certificate to be given by Person entitled to receive
Bearer Security
EXHIBIT B.2 Form of Certificate to be given by Euroclear and CEDEL in
connection with the Exchange of a portion of Temporary Global
Security.
EXHIBIT B.3 Form of Certificate to be given by Euroclear and CEDEL 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
EXHIBIT B.5 Form of Confirmation to be Sent to Purchasers of Bearer
Securities
vii
<PAGE>
INDENTURE dated as of ______________, ____,
between APEX SILVER MINES LIMITED, a corporation duly
organized and existing under the laws of the Cayman
Islands (herein called the "Company"), having its
registered office at Caledonian House, Jennett Street,
Georgetown, Grand Cayman, Cayman Islands, British West
Indies, and ___________________, as Trustee (herein
called the "Trustee"), the office of the Trustee at
which at the date hereof its corporate trust business
is principally administered being __________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
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 covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
<PAGE>
(d) 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; and
(e) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance
with generally accepted accounting principles.
Certain terms, used principally within an Article of this Indenture, may be
defined in that Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 7.15 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of the Company,
any executive officer of the Company duly authorized to act in the name of or on
behalf of such board of directors or any committee consisting of two or more
persons, who need not be directors, duly authorized to act in the name of or on
behalf of such 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.
"Business Day," when used with respect to any Place of Payment or place of
publication, means each day on which commercial banks and foreign exchange
markets settle payments in the Place of Payment or place of publication, or as
specified for a series of Securities pursuant to Section 2.2 or Section 3.1, as
the case may be. Unless otherwise specified pursuant to Section
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2.2 or Section 3.1, as the case may be, when used with respect to Securities
bearing interest at a rate or rates determined by reference to London interbank
offered rates for deposits in U.S. Dollars, "Business Day" shall exclude any day
on which commercial banks and foreign exchange markets do not settle payments in
London.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request," "Request of the Company," "Company Order" or "Order of
the Company" means a written request or order signed in the name of the Company
by its Chairman of the Board, its Chief Executive Officer, its Chief Operating
Officer, President, a Vice President or any person acting in a similar capacity,
and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Chief Financial Officer, its Chief Accounting Officer,
Secretary, an Assistant Secretary or any person acting in a similar capacity,
and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 4.10(i).
"Conversion Date" has the meaning specified in Section 4.10(e).
"Conversion Rate" has the meaning specified in Section 7.14.
"Corporate Trust Office" means the principal office of the Trustee in
_______________, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is
________________, except that with respect to the presentation of Securities (or
Coupons, if any, representing an installment of interest) for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted.
"Corporation" includes corporations, associations, companies, limited
liability companies, partnerships and business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 4.6.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 2.2 or 3.1, with respect to Securities of any series issuable or
issued as a Global Security, _________________ or any successor thereto
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation.
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"Discharged" has the meaning specified in Section 5.5.
"Dollar," "U.S. Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 4.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 4.10(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means the operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent" means the entity appointed by the Company pursuant to
Section 1.4(g). Unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, the Luxembourg Stock Exchange shall act as
Exchange Rate Agent for purposes of Section 4.10 in the case of each series of
Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex or a
certificate setting forth (1) the applicable Official Currency Unit Exchange
Rate and (2) the Dollar or Foreign Currency or currency unit amounts of
principal, premium, if any, and interest, if any, respectively (on an aggregate
basis and on the basis of a Security having a principal amount of 1,000 units in
the relevant currency or currency unit), payable on the basis of such Official
Currency Unit Exchange Rate, sent (in the case of a telecopy or telex) or
executed (in the case of a certificate) by the Chairman, Controller or any
Assistant Controller or by the Treasurer or any Assistant Treasurer of the
Company or any person acting in a similar capacity and delivered to the Trustee;
such telecopy, tested telex or certificate need not comply with Section 1.2.
"Foreign Currency" means any currency, including, without limitation, the
ECU, issued by the government of one or more countries other than the United
States of America or by a recognized confederation or association of such
governments.
"Foreign Government Securities" has the meaning specified in Section 5.5.
"Funded Debt" means any Indebtedness maturing by its terms more than one
year from the date of the issuance thereof, including any Indebtedness renewable
or extendible at the option of the obligor to a date later than one year from
the date of the original issuance thereof.
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"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or a Coupon,
the bearer thereof.
"Indebtedness" of any Person means all indebtedness representing money
borrowed which is created, assumed, incurred or guaranteed in any manner by such
Person or for which such Person is otherwise responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds to or invest in,
others).
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 2.2 and Section 3.1, as the case may be.
"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.
"Issue Date" means, with respect to any Securities of a series, the date on
which such Securities are authenticated and delivered pursuant to this
Indenture.
"Market Exchange Rate" has the meaning specified in Section 4.10(i).
"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.
"Medium-Term Debt Securities" has the meaning specified in Section 3.1.
"Medium-Term Debt Securities Certificate" shall mean a certificate signed
by the Chairman of the Board, the Chief Executive Officer, the Chief Operating
Officer, the President, any Vice President or any person acting in a similar
capacity, the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, the Controller, any Secretary or Assistant Treasurer, Assistant
Controller or Assistant Secretary of the Company, or any person acting in a
similar
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capacity or any other employee of the Company designated by a Board Resolution
as having the authority to deliver a Medium-Term Debt Securities Certificate
hereunder.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the Chief Operating Officer, the President,
any Vice President or any person acting in a similar capacity, and by the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, the Controller,
the Secretary or any Assistant Treasurer, Assistant Controller, Assistant
Secretary or any person acting in a similar capacity, of the Company, and
delivered to the Trustee. Each such Officers' Certificate shall contain the
statements provided in Section 1.2 if and to the extent required by the
provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any payment
to be made hereunder, the exchange rate between the relevant currency unit and
the currency or currency unit of payment calculated by the Exchange Rate Agent
for the Securities of the relevant series (in the case of ECU, reported by the
Commission of the European Communities and on the date hereof based on the rates
in effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of ECU), on the Business Day (in the city in which such Exchange Rate
Agent has its principal office) immediately preceding delivery of any Exchange
Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Company. Each Opinion of Counsel shall contain the
statements provided in Section 1.2 if and to the extent required by the
provisions of such Section.
"Original Issue Discount Security" means (1) 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 6.2,
and (2) any other security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding" or "outstanding," when used with respect to Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered
or deemed delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount and in the required currency or currency unit 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 that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(3) Securities which have been paid pursuant to Section 4.5 or
in exchange for or in lieu of which other Securities have been
authenticated and
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delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the
Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
a quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting, (1) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2, (2) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on the date of such determination
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on the
date of such determination) of the principal amount (or, in the case of an
Original Issue Discount Security, of the amount determined as provided in (1)
above) of such Security, and (3) 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 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 the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Person" or "person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or other similar
entity.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on the Securities of that series are payable as specified in
accordance with Section 2.2 or Section 3.1, as the case may be.
"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,
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for the purposes of this definition, any Security authenticated and delivered
under Section 4.5 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.
"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, in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or definitive
global registered form).
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 2.2 or Section 3.1, as the case may be, which
date shall be, unless otherwise specified pursuant to Section 2.2 or Section
3.1, as the case may be, the fifteenth day preceding such Interest Payment Date,
whether or not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Trust Officer," when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case of
any Bearer Security, shall include where appropriate any Coupons appertaining
thereto.
"Security Register" has the meaning specified in Section 4.4.
"Security Registrar" means the Person appointed as the initial Security
Registrar in Section 4.4 or any Person appointed by the Company as a successor
or replacement Security Registrar.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 4.6.
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"Specified Amount" has the meaning specified in Section 4.10(i).
"Stated Maturity," when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) 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 a majority of the Voting Shares of which
are at the time owned or controlled, directly or indirectly, by the Company or
by one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, and as in force on the date as of which
this instrument is executed, except as provided in Section 10.5.
"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.
"U.S. Government Obligations" has the meaning specified in Section 5.5.
"Valuation Date" has the meaning specified in Section 4.10(e).
"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," including, without
limitation, any assistant vice president.
"Voting Shares" means, with respect to any Corporation, securities of any
class or classes of capital stock in such Corporation entitling the holders
thereof (whether at all times or at the times that such class of capital stock
has voting power by reason of the happening of any contingency) to vote in the
election of members or the board of directors of comparable body of such
Corporation.
"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
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 an Officers'
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Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Unless expressly otherwise specified with respect to any certificate
or opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 11.4)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, 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 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 such 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.
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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
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of any series may be embodied in and evidenced by (1) one
or more instruments of substantially similar tenor signed by such Holders in
person or by proxies or agents duly appointed in writing, (2) the record of such
Holders voting in favor thereof, either in person or by proxies or agents duly
appointed in writing, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of Article Fourteen, or
(3) a combination of any such record and one or more instruments of
substantially similar tenor signed by such Holders in person or by proxies or
agents duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such record and/or instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such record or 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 or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such proxy or agents shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 14.6.
(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.
(c) 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 by any trust company,
bank, banker or other depository, wherever situated, showing that at the date
therein mentioned such Person had on deposit with such depository, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security is
produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
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(d) The fact and date of execution of any such instrument or writing
pursuant to Subsection (c) above, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding the same
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Clause.
(e) The principal amount and serial numbers of Registered Securities
held by any Person and the date of holding the same shall be proved by the
Security Register.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and/or Coupon and the Holder of every Security and/or Coupon 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 and/or Coupon.
(g) Whenever any Act is to be taken hereunder by the Holders of two
or more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of Securities
held by such Holders, the aggregate principal amount of the Securities
denominated in a Foreign Currency (or any currency unit) shall be deemed to be
that amount determined by the Company or by an authorized Exchange Rate Agent
and evidenced to the Trustee by an Officers' Certificate as of the date of the
taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee to be equal to the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on such date (or, in the case of a
Security denominated in a currency unit for which there is no Market Exchange
Rate, the Dollar equivalent obtained by adding together the results obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for each such Component Currency on such date) of the
principal amount (or, in the case of an Original Issue Discount Security, the
principal amount thereof that would be due and payable as of the declaration of
acceleration of the Maturity thereof pursuant to Section 6.2) of such Security.
An Exchange Rate Agent may be authorized in advance or from time to time by the
Company. Any such determination by the Company or by any such Exchange Rate
Agent shall be conclusive and binding on all Holders, the Company and the
Trustee, and neither the Company nor any such Exchange Rate Agent shall be
liable therefor in the absence of bad faith.
(h) If the Company shall solicit from the Holders of Registered
Securities any request demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed
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or consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office and unless otherwise herein expressly provided,
any such document shall be deemed to be sufficiently made, given,
furnished or filed upon its receipt by a Responsible Trust Officer of
the Trustee, 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 delivered in person, mailed,
first-class postage prepaid, or sent by overnight courier or, until
such time as the Company shall have notified the Trustee in writing
that it shall no longer accept delivery of notice by telecopy or given
by telecopy to the Company addressed to it at the address of its
registered office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company, or at its telecopy number from time to time furnished
in writing to the Trustee expressly for purposes of this Indenture,
Attention: Secretary.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER
(a) Where this Indenture provides for notice to Holders of any event:
(1) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided or unless otherwise specified in
such Securities) if in writing and mailed, first-class postage
prepaid, delivered in person, or sent by overnight courier, to each
Holder affected by such event, at such Holder's address as it appears
in the Security Register, within the time prescribed for the giving of
such notice, and
(2) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (i) published once in an Authorized Newspaper in New
York City and London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which
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such Securities are listed, and (ii) mailed, first-class postage
prepaid, delivered in person or sent by overnight courier to such
Persons whose names were previously filed with the Trustee, within the
time 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 in the manner specified above, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder. 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.
(b) In any case where notice to a Holder of Registered Securities is
given in any manner specified in Subsection (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in Subsection (a) above, neither the
failure to deliver, mail or send such notice, nor any defect in any notice so
mailed or sent, 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. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided in Subsection (a) 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.
(c) 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 the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties 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 excluded, as the
case may be.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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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 or Coupons, 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.
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS
No director, officer, employee, incorporator or shareholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, this Indenture, or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting
Securities waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
SECTION 1.13 GOVERNING LAW
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPALS THEREOF.
SECTION 1.14 LEGAL HOLIDAYS
Except as otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security or Coupon shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of such Security or Coupon) 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, as the case may be, PROVIDED 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, to the next
succeeding Business Day at such Place of Payment.
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SECTION 1.15 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED
The Trustee shall segregate moneys, funds and accounts held by the
Trustee hereunder in one currency (or currency unit) from any moneys, funds or
accounts in any other currencies (or currency units), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 1.16 PAYMENT TO BE IN PROPER CURRENCY
In the case of any Security denominated in any particular currency or
currency unit (the "Required Currency"), subject to applicable law and except as
otherwise provided herein, therein or in or pursuant to the related Board
Resolution, Medium-Term Debt Securities Certificate or supplemental indenture,
the obligation of the Company to make any payment of principal, premium or
interest thereon shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency or currency unit other than
the Required Currency, except to the extent that such tender or recovery shall
result in the Trustee's timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is made in other than the
Required Currency, the Trustee may take such actions as it considers appropriate
to exchange such other currency or currency unit for the Required Currency. The
costs and risks of any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company, the Company
shall be liable for any shortfall or delinquency in the full amount of the
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of payment
based upon any such tender or recovery which is not in the Required Currency, or
which, when exchanged for the Required Currency by the Trustee, is less than the
full amount of the Required Currency then due and payable.
SECTION 1.17 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 1.18 CHANGES IN EXHIBITS
At any time and from time to time, the Company may substitute a new
form, or add new forms, of the Exhibits hereto. Such substitution shall be
effective upon receipt by the Trustee of such new form of Exhibit and a Board
Resolution or Officers' Certificate adopting such new form of Exhibit, and
thereafter all references in this Indenture to such Exhibit shall be deemed to
refer to such new form of Exhibit.
SECTION 1.19 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture by the
parties thereto in separate counterparts, each of which when signed shall be
deemed to be an original, but all of them together represent the same agreement.
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ARTICLE TWO
ISSUANCE OF SECURITIES
SECTION 2.1 CREATION OF SECURITIES IN AMOUNT UNLIMITED
An unlimited aggregate principal amount of Securities may be issued
pursuant to this Article Two and, in the case of Medium-Term Debt Securities,
pursuant to Article Three. The Securities (including Medium-Term Debt
Securities) may be authenticated and delivered, as authorized by the Board of
Directors, in an unlimited number of series up to an aggregate principal amount
of Securities for such series as from time to time may be authorized by the
Board of Directors. All Securities of each series of this Indenture shall be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time of the
authentication and delivery or Stated Maturity of the Securities of such series.
SECTION 2.2 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF
SECURITIES OTHER THAN MEDIUM-TERM DEBT SECURITIES
At any time and from time to time, Securities of each series created
pursuant to the provisions of this Article Two may be executed by the Company
and delivered to the Trustee and shall be authenticated by the Trustee and
delivered to, or upon the order of, the Company upon receipt by the Trustee of
the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of the Securities of the
series, and specifying:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Article Two (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 4.3, 4.4,
4.5, 10.6 or 12.7 and except for any Securities which, pursuant to
Section 4.2, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal (and premium, if
any) of any of the Securities of the series are payable or the method
of determination thereof;
(4) the rate or rates, or the method of determination thereof,
at which any of the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
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(5) if an Original Issue Discount Security, the Yield to
Maturity;
(6) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
11.2;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the terms of any sinking fund and the obligation, if any, of
the Company to redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part;
(9) the terms of the obligation of the Company, if any, to
permit the conversion of the Securities of the series into stock or
other securities of the Company or of any other corporation;
(10) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell stock
or other securities of the Company;
(11) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities denominated in Dollars, the denominations
in which the Securities of the series shall be issuable;
(12) if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 6.2;
(13) the application, if any, of Section 5.3, or such other means
of satisfaction and discharge as may be specified for the Securities
and Coupons, if any, for a series;
(14) any deletions or modifications of or additions to the Events
of Default set forth in Section 6.1 or covenants of the Company set
forth in Section 8.4, Article Nine or Article Eleven pertaining to the
Securities of the series;
(15) the forms of the Securities and Coupons, if any, of the
series;
(16) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will be
denominated and/or in which
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payment of the principal of (and premium, if any) and interest, if
any, on any of the Securities of the series shall be payable and the
Exchange Rate A gent, if any, for such series;
(17) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or a Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit or
units, other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon
which, such election may be made, or the other circumstances under
which any of the Securities are to be so payable, including without
limitation the application of Section 4.10(b) and any deletions to,
modifications of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(18) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series may
be determined with reference to an index based on (i) a currency or
currencies or currency unit or units other than that in which such
Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(19) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or any combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and 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 definitive global form
with or without Coupons and, if so, whether beneficial owners of
interests in any such definitive Global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which and
the place or places where any such exchanges may occur, if other than
in the manner provided in Section 4.4;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a U.S. Person (including definition of such term),
in respect of any tax assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the
terms of any such option);
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(21) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary Global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 4.3;
and
(22) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers' Certificate
certifying as to such action also shall be delivered to the Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental indentures,
such supplemental indenture or indentures, accompanied by a Board Resolution or
Board Resolutions authorizing such supplemental indenture or indentures and
designating the new series to be created and prescribing pursuant to Subsection
(a) above, consistent with the applicable provisions of this Indenture, the
terms and provisions relating to the Securities of the series.
(c) [Reserved.]
(d) An Opinion of Counsel that all instruments furnished to the
Trustee pursuant to this Article 2 conform to the requirements of this Indenture
and constitute sufficient authority hereunder for the Trustee to authenticate
and deliver the Securities and to deliver the Coupons, if any, of the series;
that all conditions precedent provided for in this Indenture relating to the
authentication and delivery of the Securities and delivery of the Coupons, if
any, of the series have been complied with; that the Company has corporate power
to execute and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all necessary
corporate action for those purposes; and that the supplemental indenture, if
any, as executed and delivered and the Securities and Coupons, if any, of the
series, when issued, will be the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect, the enforceability of the Company's obligations
also being subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and to such
other exceptions that are customary in the circumstances); that the Securities
and Coupons, if any, of the series, when issued, will be entitled to the
benefits of this Indenture, equally and ratably with all other Securities and
Coupons, if any, of such series theretofore issued and then outstanding
hereunder; and that the amount of Securities then outstanding under this
Indenture, including the Securities of the series, will not exceed the amount at
the time permitted by law or this Indenture.
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(e) An Officers' Certificate stating that the Company is not in
default under this Indenture and that the issuance of the Securities and
Coupons, if any, of the series will not result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, the Company's
Memorandum of Association and Articles of Association, or other comparable
organizational documents, as applicable, or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party or by
which it is bound, or any order of any court or administrative agency entered in
any proceeding to which the Company is a party or by which it may be bound or to
which it may be subject; and that all conditions precedent provided in this
Indenture relating to the authentication and delivery of the Securities and
Coupons, if any, of the series have been complied with.
(f) Such other documents as the Trustee may reasonably require.
ARTICLE THREE
ISSUANCE OF MEDIUM-TERM DEBT SECURITIES
SECTION 3.1 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF
MEDIUM-TERM DEBT SECURITIES
At any time, and from time to time, Securities (sometimes referred to
herein as "Medium-Term Debt Securities") of each series created pursuant to the
provisions of this Article Three may be executed by the Company and delivered to
the Trustee and shall be authenticated by the Trustee and delivered to, or upon
the order of, the Company upon receipt by the Trustee of the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of Medium-Term Debt Securities up to a
specified aggregate principal amount, in such series and subject to such terms
as shall be established by officers of the Company authorized by such
resolutions to establish such series and terms.
(b) A Medium-Term Debt Securities Certificate requesting the Trustee
to authenticate and deliver Medium-Term Debt Securities of a series as
contemplated by Section 4.2, and specifying the following terms with respect to
the Medium-Term Debt Securities of the particular series, authorized pursuant to
the Board Resolution or Board Resolutions referred to in Subsection (a) above:
(1) the title of the Medium-Term Debt Securities of the series
(which shall distinguish the Medium-Term Debt Securities of the series
from all other Securities);
(2) the date of the Medium-Term Debt Securities of the series;
(3) any limit upon the aggregate principal amount of the Medium-
Term Debt Securities of the series which may be authenticated and
delivered under this Article Three (except for Medium-Term Debt
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of,
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other Medium-Term Debt Securities of the series pursuant to Section
4.3, 4.4, 4.5, 10.6 or 12.7 and except for any Medium-Term Debt
Securities which, pursuant to Section 4.2, are deemed never to have
been authenticated and delivered hereunder);
(4) the date or dates on which the principal (and premium, if
any) of any of the Medium-Term Debt Securities of the series are
payable or the method of determination thereof, which in any event may
not be less than nine months subsequent to the date of the first
authentication of Medium-Term Debt Securities of the series;
(5) the rate or rates, or the method of determination thereof,
at which any of the Medium-Term Debt Securities of the series shall
bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the interest payable on any
Medium-Term Debt Securities of the series that are Registered
Securities on any Interest Payment Date;
(6) If an Original Issue Discount security, the Yield to
Maturity;
(7) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Medium-Term Debt Securities
and Coupons, if any, of the series shall be payable and the office or
agency for the Medium-Term Debt Securities of the series maintained by
the Company pursuant to Section 11.2;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Medium-Term
Debt Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(9) the terms of any sinking fund and the obligation, if any, of
the Company to redeem or purchase Medium-Term Debt 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
Medium-Term Debt Securities of the series shall be redeemed or
purchased, in whole or in part;
(10) the terms of the obligation of the Company, if any, to
permit the conversion of the Medium-Term Debt Securities of the series
into shares or other securities of the Company or of any other
corporation;
(11) the terms, if any, for the attachment to Medium-Term Debt
Securities of the series of warrants, options or other rights to
purchase or sell shares or other securities of the Company;
(12) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000 if Bearer
Securities, for Medium-
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Term Debt Securities denominated in Dollars, the denominations in
which the Medium-Term Debt Securities of the series shall be issuable;
(13) if other than the principal amount thereof, the portion of
the principal amount of any of the Medium-Term Debt Securities of the
series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.2;
(14) the application, if any, of Section 5.3, or such other means
of satisfaction and discharge as may be specified for the Medium-Term
Debt Securities and Coupons, if any, of the series;
(15) any deletions or modifications of or additions to the Events
of Default set forth in Section 6.1 or covenants of the Company set
forth in Section 8.4, Article Nine or Article Eleven pertaining to the
Medium-Term Debt Securities of the series;
(16) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Medium-Term Debt Securities of
the series will be denominated and/or in which payment of the
principal of (and premium, if any) and interest, if any, on any of the
Medium-Term Debt Securities of the series shall be payable and the
Exchange Rate Agent, if any, for such series;
(17) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or Holder thereof, or under some or all other
circumstances, in a currency or currencies, or currency unit or units,
other than that in which the Medium-Term Debt Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, or the other
circumstances under which any of the Medium-Term Debt Securities are
to be so payable, including without limitation the application of
Section 4.10(b) and any deletions to, modification of or additions to
the provisions thereof, and any provision requiring the Holder to bear
currency exchange costs by deduction from such payments;
(18) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Medium-Term Debt Securities of
the series may be determined with reference to an index based on (i) a
currency or currencies or currency unit or units other than that in
which such Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(19) whether the Medium-Term Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities (with or
without Coupons), or any combination thereof, whether Bearer
Securities may be exchanged for Registered Securities of the series
and whether Registered Securities may be
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exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations) and the circumstances under which and
the place or places where any such exchanges, if permitted, may be
made; and whether any Medium-Term Debt Securities of the series are to
be issuable initially in temporary global form and whether any Medium-
Term Debt Securities of the series are to be issuable in definitive
global form with or without Coupons and, if so, whether beneficial
owners of interests in any such definitive Global Medium-Term Debt
Security may exchange such interests for Medium-Term Debt Securities
of such series and of like tenor of any authorized form and
denomination and the circumstances under which and the place or places
where any such exchange may occur, if other than in the manner
provided in Section 4.4;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Medium-Term Debt Securities of the series to any Holder
who is not a U.S. Person (including a definition of such term), in
respect of any tax assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Medium-Term Debt Securities rather than pay additional
amounts (and the terms of any such option);
(21) the Person to whom any interest on any Medium-Term Debt
Security of the series shall be payable, if other than the Person in
whose name that Medium-Term Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the person to
whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the
Coupons appertaining thereto as they severally mature and the extent
to which, or the manner in which, any interest payable on a temporary
Global Medium-Term Debt Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 4.3;
(22) the forms of the Medium-Term Debt Securities and Coupons, if
any, of the series; and
(23) any other terms of any of the Medium-Term Debt Securities of
the series (which terms shall not be inconsistent with the provisions
of this Indenture).
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to Subsection (d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the delivery of
such Medium-Term Debt Securities Certificate to the Trustee shall be deemed to
be a certification by the Company that all matters certified in the most recent
Officers' Certificate delivered to the Trustee pursuant to Subsection (d) below
continue to be true and correct, as if such Officers' Certificate related to the
Medium-Term Debt Securities covered by such Medium-Term Debt Securities
Certificate, on and as of the date of such Medium-Term Debt Securities
Certificate. The delivery of such Medium-Term Debt
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Securities Certificate also shall be deemed to be a certification that the Board
Resolution or Board Resolutions referred to in Subsection (a) above are in full
force and effect on and as of the date of such Medium-Term Debt Securities
Certificate and that the terms and form or forms of the Medium-Term Debt
Securities and Coupons, if any, of the series have been established by an
officer or officers of the Company authorized by such Board Resolution or Board
Resolutions in accordance with the provisions thereof and hereof.
(c) If (1) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this Subsection (c)
with respect to the Medium-Term Debt Securities authorized pursuant to the Board
Resolution or Board Resolutions referred to in Subsection (a) above or (2) if
the Medium-Term Debt Securities Certificate referred to in Subsection (b) above
specifies a means of satisfaction and discharge other than the application of
Section 5.3 with respect to the series of Medium-Term Debt Securities to which
such Medium-Term Debt Securities Certificate relates, an Opinion of Counsel that
the Medium-Term Debt Securities have been duly authorized by resolutions of the
Board of Directors of the Company, subject to the establishment of certain terms
of the Medium-Term Debt Securities and Coupons, if any, of the series by
officers of the Company authorized by such resolutions to establish such terms,
that when the terms of the Medium-Term Debt Securities and Coupons, if any, of
the series have been established as provided in such resolutions and in this
Indenture and the Medium-Term Debt Securities and Coupons, if any, of the series
have been executed, authenticated and delivered in accordance with the
provisions of this Indenture, the Medium-Term Debt Securities and Coupons, if
any, of the series, assuming they do not violate any applicable law then binding
on the Company, will constitute legal, valid and binding obligations of the
Company (subject to applicable bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium or other laws affecting creditors' rights
generally from time to time in effect, the enforceability of the Company's
obligations also being subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and to such other exceptions that are customary in the circumstances) entitled
to the benefits of this Indenture, equally and ratably with all other Securities
and Coupons, if any, of such series theretofore issued and then outstanding
hereunder, and that the amount of Securities then outstanding under this
Indenture, including the Medium-Term Debt Securities of the series, will not
exceed the amount at the time permitted by law or this Indenture.
(d) If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this Subsection (d) to the Trustee during the
immediately preceding 12-month period, an Officers' Certificate stating that the
Company is not in default under this Indenture, that the issuance of the Medium-
Term Debt Securities and Coupons, if any, of the series will not result in any
breach of any of the terms, conditions or provisions of, or constitute a default
under, the Company's Memorandum of Association or Articles of Association, or
other comparable organizational documents, as applicable, or any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is
a party or by which it is bound, or any order of any court or administrative
agency entered in any proceeding to which the Company is a party or by which it
may be bound or to which it may be subject, that all laws and requirements with
respect to the execution and delivery by the Company of the Medium-Term Debt
Securities and Coupons, if any, of the series have been complied with and that
all conditions precedent
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provided in this Indenture relating to the authentication and delivery of the
Medium-Term Debt Securities and Coupons, if any, of the series have been
complied with.
(e) Such other documents as the Trustee shall reasonably request.
SECTION 3.2 FORM OF MEDIUM-TERM DEBT SECURITIES
The Medium-Term Debt Securities and Coupons, if any, of each series
shall be in such forms as shall be specified as contemplated by Section 3.1.
ARTICLE FOUR
THE SECURITIES
SECTION 4.1 FORM AND DENOMINATION
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 in Section 2.2 or
Section 3.1, as the case may be, and (subject to Section 4.2) set forth in the
Officers' Certificate or Medium-Term Debt Securities Certificate referred to in
Section 2.2 or Section 3.1, as the case may be, or in any indenture supplemental
hereto.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 2.2 or Section 3.1, as the case
may be. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $l,000 and in any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee. Each Security shall bear the
appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 4.2 EXECUTION, DELIVERY, DATING AND AUTHENTICATION
The Securities shall be executed on behalf of the Company by a manual
or facsimile signature of its Chairman, its President, any of its Vice
Presidents, its Treasurer, any Assistant Treasurer, its Secretary, any Assistant
Secretary or any person acting in a similar capacity, under its corporate seal
reproduced thereon. Any Coupons shall be executed on behalf of the Company by
the manual or facsimile signature of any such officer of the Company. In case
any of the above referenced officers of the Company who shall have signed any of
the Securities or Coupons shall cease to be such officer before the Securities
so signed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities and/or
Coupons had not ceased to be such officer; and any Securities or Coupons may be
signed on behalf of the Company by such persons as, at the actual date of the
execution
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of such Security or Coupon, shall be such officers of the Company, although at
the date of the execution of this Indenture any such person was not such
officer.
At any time and from time to time, the Company may deliver Securities
of any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of any
Medium-Term Debt Securities) with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order (or, in the case of Medium-Term Debt Securities of any series, upon
receipt of a Medium-Term Debt Securities Certificate and in accordance with the
terms thereof) shall authenticate and make available for delivery such
Securities; PROVIDED, HOWEVER, that, unless otherwise specified in the Board
Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt
Securities in the Medium-Term Debt Securities Certificate) with respect to an
Bearer Securities, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 4.3 which is
not in global form) shall be mailed or otherwise delivered to any location in
the United States; and PROVIDED FURTHER that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-Term
Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to
such Bearer Securities, such Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security (including any temporary Bearer Security issued pursuant to Section 4.3
which is not in global form) shall have furnished to the Company or any agent,
underwriter or selling group member a certificate substantially 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. In connection with the original issuance of any Bearer Security and
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt
Securities Certificate) with respect to such Bearer Securities, a confirmation
substantially in the form set forth in Exhibit B.5 to this Indenture shall be
sent to each purchaser thereof. If any Security shall be represented by a
definitive Global Bearer Security, then, for purposes of this Section and
Section 4.3, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such definitive Global Bearer Security.
Except as permitted by Section 4.5, the Trustee shall not authenticate and make
available for delivery any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any
series 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, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 3.1(b)(2), each
Registered Security shall be dated the date of its authentication, and each
Bearer Security and any Bearer Security in
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global form shall be dated as of the date of original issuance of the first
Security of such series to be issued.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
below executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 4.8
together with a written statement (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee's certificate of authentication shall be in substantially
the following form:
Dated:
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
__________________, as Trustee
By: _________________________
Authorized Signatory
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SECTION 4.3 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order (or, in the case of Medium-Term Debt
Securities, receipt of the Medium-Term Debt Securities Certificate with respect
to such Medium-Term Debt Securities) the Trustee shall authenticate and make
available for delivery, 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 conclusively by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall be
exchanged in accordance with the provisions of the following subsections), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 11.2 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons) the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like aggregate principal amount of definitive Securities
of the same series and of like tenor or authorized denominations; PROVIDED,
HOWEVER, that, unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; 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 4.2.
If temporary Bearer Securities of any series are issued in global
form, such temporary Global Bearer Securities shall, unless otherwise specified
as contemplated by Section 2.2 or Section 3.1, as the case may be, be delivered
to the London office of the Depositary, for the benefit of Euroclear and CEDEL
Bank, societe anonyme ("CEDEL"), for credit to the respective accounts of the
beneficial owners of interests in such Securities (or to such other accounts as
they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole
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or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such temporary Global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary Global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary Global
Security shall be in bearer form, registered form, definitive Global form or any
combination thereof, as specified as contemplated by Section 2.2 or Section 3.1,
as the case may be, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, upon such presentation by the Depositary, such temporary Global Security
shall be accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary Global Security held for its account then to be exchanged, each in the
form set forth in Exhibit B.2 to this Indenture; PROVIDED FURTHER that
definitive Bearer Securities (including a definitive Global Bearer Security)
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 4.2.
Unless otherwise specified as contemplated by Section 2.2 or Section
3.1, as the case may be, the interest of a beneficial owner of Securities of a
series in a temporary Global Bearer Security shall be exchanged for definitive
Bearer Securities of the same series and of like tenor following the Exchange
Date when the beneficial owner instructs Euroclear or CEDEL, as the case may be,
to request such exchange on his behalf and delivers to Euroclear or CEDEL, as
the case may be, a certificate substantially 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,
CEDEL, the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, any such exchange shall be made free of charge to the beneficial owners
of such temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. The definitive Bearer
Securities to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as provided above, 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 2.2 or Section 3.1, as the case may be, interest
payable on a temporary Global Bearer Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and CEDEL on such Interest Payment Date upon delivery by
Euroclear and CEDEL to the Trustee of a certificate or certificates
substantially 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 Global Security (or to such other
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accounts as they may direct) on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate substantially
in the form set forth in Exhibit B.4 to this Indenture. Any interest so received
by Euroclear and CEDEL 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
11.3.
SECTION 4.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 11.2 a register (being the
combined register of the Security Registrar and all additional transfer agents
designated pursuant to Section 11.2 for the purpose of registration of transfer
of Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Trustee is hereby
appointed the initial Security Registrar, with the Security Register initially
to be kept at __________________________ at all reasonable times each register
maintained by the Security Registrar and any additional transfer agents shall be
open for inspection by the Trustee.
Subject to Section 4.11, upon surrender for registration of transfer
of any Registered Security of any series at the office or agency of the Company
maintained pursuant to Section 11.2 for such purpose in a Place of Payment for
such series, 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 a like aggregate principal amount and 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 a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange. the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
Bearer Securities may not be issued in exchange for Registered Securities.
Subject to Section 4.11, at the option of the Holder and unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, 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 appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee
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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 11.2, 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 (1) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (2) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, 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 make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, any definitive
Global Bearer Security shall be exchangeable only as provided in this
Subsection. If the beneficial owners of interests in a definitive Global Bearer
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 2.2 or Section 3.1, as the
case may be, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in an aggregate principal amount
equal to the principal amount of such definitive Global Bearer Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such definitive Global Bearer Security shall be surrendered
by the Depositary or such other depositary or Depositary) as shall be specified
in the Company Order or Medium-Term Debt Securities Certificate, as the case may
be, with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, in exchange for each portion of such definitive Global Bearer
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
definitive Global Bearer Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, 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
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business 15 Business Days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; PROVIDED FURTHER that no
Bearer Security delivered in exchange for a portion of a definitive Global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
definitive Global Bearer Security after the close of business at the office or
agency where such exchange occurs on (1) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (2) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such definitive Global Bearer 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.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 4.3, Section 10.6 or Section 12.7 not involving
any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 Business 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 day of mailing of the relevant
notice of redemption, or (2) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (3) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
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SECTION 4.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security or Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and make available for delivery 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,
PROVIDED that if such new Security is a Bearer Security, such Security shall be
delivered only outside the United States.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon and (2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, 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 (upon surrender to the Trustee of
such Security with all appurtenant Coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
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 or Coupon, pay such Security
or Coupon; PROVIDED, HOWEVER, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
11.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 2.2 or Section 3.1,
as the case may be, 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 or Coupon under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
Coupons of that series duly issued hereunder.
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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 4.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Unless otherwise provided as contemplated by Section 2.2 or Section
3.1, as the case may be, 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. At the option of
the Company, interest on the Registered Securities of any series that bears
interest may be paid by mailing a check to the address of any Holder as such
address shall appear in the Security Register.
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 Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each 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 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 Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on such
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Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after 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.
If any installment of interest the Stated Maturity of which is on or
prior to the Redemption Date for any Security called for redemption pursuant to
Article Twelve is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section and Section 4.4,
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 4.7 PERSONS DEEMED OWNERS
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 4.4, 4.6 and 4.11
and unless otherwise specified as contemplated by Section 2.2 or Section 3.1, as
the case may be) interest on such Security and for all other purposes
whatsoever, whether or not such Security is 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 shall pass by delivery.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any Coupon as the absolute
owner of such Security or Coupon for the purpose of receiving payment thereof or
on account thereof (unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be) 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 4.8 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. All Securities and Coupons so delivered shall be promptly
canceled by the Trustee. All Bearer Securities and unmatured Coupons held by the
Trustee pending such cancellation shall be deemed to be delivered for
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cancellation for all purposes of this Indenture and the Securities. 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 to the Trustee shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities and Coupons held by the Trustee shall
be disposed of in a manner selected by the Trustee unless otherwise directed by
a Company Order; PROVIDED, HOWEVER, that the Trustee may, but shall not be
required to, destroy such canceled Securities and Coupons.
SECTION 4.9 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, 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 4.10 CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES
The provisions of this Section shall apply to the Securities of any
series unless otherwise provided as contemplated by Section 2.2 or Section 3.1,
as the case may be.
(a) The following payment provisions shall apply to any Registered
Security of any series denominated in a Foreign Currency or any currency unit,
including without limitation, the ECU, except as provided in Subsection (b)
below:
(1) Except as provided in Subsection (a)(2) or in Subsection (e)
below, payment of principal of and premium, if any, on such Registered
Security will be made at the Place of Payment by delivery of a check
in the currency or currency unit in which the Security is denominated
on the payment date against surrender of such Registered Security, and
any interest on any Registered Security will be paid at the Place of
Payment by mailing a check in the currency or currency unit in which
such interest is payable (which shall be the same as that in which the
Security is denominated unless otherwise provided) to the Person
entitled thereto at the address of such Person appearing on the
Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series denominated
in any currency unit, including without limitation, the ECU, if the following
provisions (or any substitute therefor, or addition thereto, not inconsistent
with this Indenture) are established pursuant to Section 2.2 or Section 3.1, as
the case may be, and if the Company has not, before
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the delivery of the election referred to in Clause (1) below, deposited funds or
securities in compliance with Section 5.1 or Subsection (a)(1) or (if specified
pursuant to Section 2.2 or Section 3.1, as the case may be) Subsection (a)(2) of
Section 5.3, the following payment provisions shall apply to any payment to be
made prior to the giving of any notice to Holders of any election to redeem
pursuant to Section 12.4, except as otherwise provided in Subsections (e) and
(f) below:
(1) A Holder of Securities of a series shall have the option to
elect to receive payments of principal of, premium, if any, and
interest, if any, on such Securities in a currency or currency unit
(including Dollars), other than that in which the Security is
denominated, such election, as designated in the certificates for such
Securities (or as provided by Section 2.2 or Section 3.1, as the case
may be, or a supplemental indenture hereto with respect to
uncertificated securities), shall be made by delivering to the Paying
Agent a written election, to be in form and substance satisfactory to
the Paying Agent, not later than the close of business in New York,
New York, on the day 15 days prior to the applicable payment date.
Such election will remain in effect for such Holder until changed by
the Holder by written notice to the Paying Agent (but any such written
notice must be received by the Paying Agent not later than the close
of business on the day 15 days prior to the next payment date to be
effective for the payment to be made on such payment date and no such
change may be made with respect to payments to be made on any Security
of such series with respect to which notice of redemption has been
given by the Company pursuant to Article Twelve). Any Holder of any
such Security who shall not have delivered any such election to the
Paying Agent in accordance with this Subsection (b) will be paid the
amount due on the applicable payment date in the relevant currency
unit as provided in Subsection (a) of this Section. Payment of
principal of and premium, if any, shall be made on the payment date
therefor against surrender of such Security. Payment of principal,
premium, if any, and interest, if any, shall be made at the Place of
Payment by mailing at such location a check, in the applicable
currency or currency unit, to the Holder entitled thereto at the
address of such Holder appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, and interest, if
any, on any Bearer Security will be made, except as provided in Section 4.3 with
respect to temporary Global Securities, unless otherwise specified pursuant to
Section 2.2 or Section 3.1, as the case may be, and/or Section 10.1(8), at such
place or places outside the United States as may be designated by the Company
pursuant to any applicable laws or regulations by any appropriate method in the
currency or currencies or currency unit or units in which the Security is
payable (except as provided in Subsection (e) below) on the payment date
therefor against surrender of the Bearer Security, in the case of payment of
principal and premium, if any, or the relevant
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Coupon, in the case of payment of interest, if any, to a Paying Agent designated
for such series pursuant to Section 11.2.
(d) Not later than ten Business Days (with respect to any Place of
Payment) prior to each payment date, the Paying Agent shall deliver to the
Company a copy of its record of the respective aggregate amounts of principal
of, premium, if any, and interest, if any, on the Securities to be made on such
payment date, in the currency or currency unit in which each of the Securities
is payable, specifying the amounts so payable in respect of Registered
Securities and Bearer Securities and in respect of the Registered Securities as
to which the Holders of Securities denominated in any currency unit shall have
elected to be paid in another currency or currency unit as provided in
Subsection (b) above. If the election referred to in Subsection (b) above has
been provided for pursuant to Section 2.2 or Section 3.1, as the case may be,
and if at least one Holder has made such election, then, not later than the
fifth Business Day (with respect to any Place of Payment) prior to the
applicable payment date the Company will deliver to the Trustee an Exchange Rate
Officers' Certificate in respect of the Dollar or Foreign Currency or currency
unit payments to be made on such payment date. The Dollar or Foreign Currency or
currency unit amount receivable by Holders of Registered Securities denominated
in a currency unit who have elected payment in another currency or currency unit
as provided in Subsection (b) above shall be determined by the Company on the
basis of the applicable Official Currency Unit Exchange Rate set forth in the
applicable Exchange Rate Officers' Certificate.
(e) If a Foreign Currency in which any Security is denominated or
payable ceases to be recognized both by the government of the country which
issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if ECU ceases
to be used within the European Monetary System, or if any other currency unit in
which a Security is denominated or payable ceases to be used for the purposes
for which it was established, in each case as determined in good faith by the
Company, then with respect to each date for the payment of principal of,
premium, if any, and interest, if any, on the applicable Security denominated or
payable in such Foreign Currency, ECU or such other currency unit occurring
after the last date on which such Foreign Currency, ECU or such other currency
unit was so used (the "Conversion Date"), the Dollar shall become the currency
of payment for use on each such payment date (but ECU or the Foreign Currency or
the currency unit previously the currency of payment shall, at the Company's
election, resume being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which gave rise to
the Dollar becoming such currency no longer prevail, in each case as determined
in good faith by the Company). The Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holder of such
Security with respect to such payment date shall be the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the currency unit, as determined by the Exchange Rate Agent (which shall be
delivered in writing to the Trustee not later than the fifth Business Day prior
to the applicable payment date) as of the Conversion Date or, if later, the date
most recently preceding the payment date in question on which such determination
is possible of performance, but not more than 15 days before such payment date
(such Conversion Date or date preceding a payment date as aforesaid being called
the "Valuation Date") in the manner provided in Subsection (g) or (h) below.
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(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as provided
for by Subsection (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, or if ECU ceases to be used within the European Monetary System, or
if another currency unit ceases to be used for the purposes for which it is
established, in each case as determined in good faith by the Company, such
Holder shall (subject to Subsection (e) above) receive payment in the currency
unit in which the Security is denominated. Each payment covered by an election
pursuant to Subsection (b) above shall be governed by the provisions of this
Subsection (f) (but, subject to any contravening valid election pursuant to
Subsection (b) above, the specified Foreign Currency or ECU or other currency
unit shall, at the Company's election, resume being the currency or currency
unit, as applicable, of payment with respect to Holders who have so elected, but
only with respect to payments on payment dates preceded by 15 Business Days
during which the circumstances which gave rise to such currency unit becoming
the currency unit of payment, no longer prevail, in each case as determined in
good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent as of each Valuation Date and shall be
obtained by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate on
the Valuation Date for such Component Currency.
(i) For purposes of this Section 4.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including without limitation, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units (including decimals) which such Component Currency represented in the
relevant currency unit, on the Conversion Date or, if ECU and such currency unit
is being used for settlement of transactions by public institutions of or within
the European Communities or was so used after the Conversion Date, the Valuation
Date or the last date the currency unit was so used, whichever is later. If
after such date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after such date two or
more Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be replaced by
an amount in such single currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and such single
currency shall thereafter be a Component Currency. If after such date any
Component Currency
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shall be divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date, for any currency or
currency unit the noon Dollar buying rate for that currency or currency unit, as
the case may be, for cable transfers quoted in New York City on such date as
certified for customs purposes by the Federal Reserve Bank of New York or such
other rate as may be established pursuant to Section 2.2 or Section 3.1, as the
case may be. If such rates are not available for any reason with respect to one
or more currencies or currency units for which an Exchange Rate is required, the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency or currency unit in question, or
such other quotations as the Exchange Rate Agent shall deem appropriate. Unless
otherwise specified by the Exchange Rate Agent, if there is more than one market
for dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would, as determined in its sole
discretion and without liability on the part of the Exchange Rate Agent,
purchase such currency or currency unit in order to make payments in respect of
such securities.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit and the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company and all Holders of the Securities and
Coupons denominated or payable in the relevant currency or currency units. In
the event that a Foreign Currency ceases to be used both by the government of
the country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.6 to the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used within the European Monetary System, or any
other currency unit in which Securities or Coupons are denominated or payable,
ceases to be used for the purposes for which it was established, the Company,
after learning thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner provided in
Section 1.6 to the Holders) specifying the Conversion Date. Any actions taken
pursuant to the parentheticals at the end of the first sentence of Section
4.10(e) and at the end of Section 4.10(f) shall be promptly set forth in like
notices from the Company to the Trustee and then from the Trustee to the Holders
(which notice may be mailed with payment to the Holders).
Subject to the provisions of Sections 7.1 and 7.3, the Trustee shall
be fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent, and shall not otherwise have
any duty or obligation to determine such information independently.
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SECTION 4.11 SECURITIES IN GLOBAL FORM
(a) If Securities of a series are issuable in global form, as
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
then, notwithstanding Subsection (a)(8) of Section 2.2 or Subsection (b)(9) of
Section 3.1, as the case may be, and the provisions of Section 4.1, such
Security shall represent such of the Outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Global
Security 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 (or, in the case of Medium-Term Debt
Securities, the Medium-Term Debt Securities Certificate) to be delivered to the
Trustee pursuant to Section 4.2 or Section 4.3. Subject to the provisions of
Section 4.2 and, if applicable, Section 4.3, the Trustee shall deliver and
redeliver any Security in definitive global bearer form in the manner and upon
written instructions given by the Person or Persons specified therein or in the
applicable Company Order (or, in the case of Medium-Term Debt Securities, the
Medium-Term Debt Securities Certificate). If a Company Order (or, in the case of
Medium-Term Debt Securities, Medium-Term Debt Securities Certificate) pursuant
to Section 4.2 or 4.3 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement of 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.
(b) Any Global Security shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositary's instruction and shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary."
(c) Notwithstanding any other provisions of this Section 4.11 or of
Section 4.4 and subject to the provisions of Subsection (d) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 4.4,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(d) (1) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the
Securities for such series ceases to be a clearing agency registered
under the Exchange Act or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such
Global
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Security. If a successor Depositary for such Global Security is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee or its agent, upon receipt of a company
Request for the authentication and delivery of individual Securities
of such series in exchange for such Global Security, will authenticate
and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount
of the Global Security in exchange for such Global Security.
(2) The Company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of a Company
Request for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global Security
or Securities representing such series or portion thereof in exchange
for such Global Security or Securities.
(3) If specified by the Company pursuant to Sections 2.2 and 3.1
with respect to Securities issued or issuable in the form of
a Global Security, the Depositary for such Global Security
may surrender such Global Security in exchange in whole or
part for individual Securities of such series of like tenor
and terms in definitive form on such terms as are acceptable
to the Company and such Depositary. Thereupon the Company
shall execute, and the Trustee or its agent shall
authenticate and deliver, without service charge, (i) to
each Person specified by such Depositary a new Security or
Securities of the same series of like tenor and terms and of
any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security of like tenor
and terms and in an authorized denomination equal to the
difference. If any, between the principal amount of the
surrendered Global Security and the aggregate principal
amount of Securities delivered to the Holders thereof.
(4) In any exchange provided for in any of the preceding three
Clauses, the Company will execute and the Trustee or its
agent will authenticate and deliver individual Securities in
definitive registered form in authorized denominations. Upon
the exchange of the entire principal amount of a Global
Security for individual Securities, such Global Security
shall be cancelled by Trustee or its agent. Except as
provided in the preceding Clause, Securities issued in
exchange for a Global Security pursuant to this Section
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shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the
Security Registrar. The Trustee or the Security Registrar
shall deliver such Securities to the Persons in whose names
such Securities are so registered.
(e) The provisions of the last sentence of the fifth paragraph of
Section 4.2 shall apply to any Security represented by a Global Security if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Global Security 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 the fifth paragraph of Section 4.2.
(f) Notwithstanding the provisions of Section 4.6, unless otherwise
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
payment of principal of and any premium and any interest on any Global Security
shall be made to the Person or Persons specified therein.
(g) Notwithstanding the provisions of Section 4.7 and except as
provided in the preceding Subsection, the Company, and any agent of the Company
may, and the Trustee and any agent of the Trustee, at the direction of the
Company, may treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a definitive Global Security as shall be
specified in a written statement of the Holder of such definitive Global
Security or, in the case of a definitive Global Security in bearer form, of
Euroclear or CEDEL which is produced to the Trustee by such Person; PROVIDED,
HOWEVER, that none of the Company, the Trustee, the Security Registrar or any
Paying Agent shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 4.12 CUSIP, ISIN AND COMMON CODE NUMBERS
The Company in issuing the Securities may use a "CUSIP," "ISIN" or
"Common Code" number, and if so, the Trustee shall use the CUSIP, ISIN and
Common Code number in notices of redemption or exchange as a convenience to
Holders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN and
Common Code number printed in the notice or on the Securities, and the reliance
may be placed only on the other identification numbers printed on the
Securities. The Company shall promptly notify the Trustee of any change in any
CUSIP, ISIN or Common Code number.
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ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 SATISFACTION AND DISCHARGE OF INDENTURE IN RESPECT OF ANY
SERIES OF SECURITIES
This Indenture shall upon Company Request cease to be of further
effect with respect to a series of Securities (except as to any surviving rights
of (as applicable) registration of transfer or exchange of Securities and
Coupons, if any, of such series herein expressly provided for), and the Trustee,
at the request and expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when
(1) either
(i) all Securities and Coupons, if any, of such series
theretofore authenticated and delivered (other than (A) Securities and
Coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 4.5 and (B)
Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 11.3) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year, or
(C) 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 (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currency unit in which such Securities
and Coupons of such series are payable sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all taxes or other
charges and assessments in respect thereof payable by the Trustee to pay
and discharge the entire indebtedness on such Securities and Coupons of
such series not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
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date of such deposit (in the case of Securities and Coupons of such series
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 with respect to such series of Securities; 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 the
Securities of the series under this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series, the obligations of the Company in Sections 4.4, 4.5, 5.2,
5.4, 7.7 and 11.2, the Company's rights of optional redemption, if any, the
obligations of the Trustee to any Authenticating Agent under Section 7.15 and,
if money shall have been deposited with the Trustee pursuant to Subsection
(1)(B) of this Section 5.1, the obligations of the Trustee under Section 5.2 and
the last paragraph of Section 11.3 shall survive.
SECTION 5.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 11.3, all
money deposited with the Trustee pursuant to Sections 5.1 and 5.3 (and all money
received as payment in connection with U.S. Government Obligations and Foreign
Government Securities deposited pursuant to Section 5.3) shall be held in trust
and applied by it, in accordance with the provisions of the Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee.
SECTION 5.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF
ANY SERIES
(a) If this Section is specified, as contemplated by Section 2.2 or
Section 3.1, as the case may be, to be applicable to Securities and Coupons, if
any, of any series, at the Company's option, either
(1) the Company will be deemed to have been Discharged (as
defined below) from its obligations with respect to Securities and
Coupons, if any, of such series or
(2) the Company will cease to be under any obligation with
respect to such series to comply with any term, provision or condition
set forth in (i) Sections 9.1 and 9.2 or (ii) the instrument or
instruments setting forth the terms, provisions or conditions of such
series pursuant to Section 2.2 or Section 3.1, as the case may be
(PROVIDED, in the case of this Clause (ii), that such instrument or
instruments specify which terms, provisions or conditions, if any, are
subject to
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this Subsection (a)(2) and that no such instrument may specify that
the Company may cease to comply with any obligations as to which it
may not be Discharged pursuant to the definition of "Discharged").
(b) A Discharge pursuant to Subsection (a)(1) above shall be
effective with respect to the Securities and Coupons, if any, of such series
after the applicable conditions set forth below in (1) and either Clause (2) or
Clause (3) have been satisfied, and the Company's release from its obligations
to comply with certain obligations with respect to such series pursuant to
Subsection (a)(2) above shall be effective with respect to the Securities and
Coupons, if any, of such series on the first day after the applicable conditions
set forth below in Clause (1) and either Clause (2) or Clause (3) have been
satisfied:
(1) the Company has:
(i) paid or caused to be paid all other sums payable with
respect to the Outstanding Securities and Coupons, if any,
of such series (in addition to any required under Subsection
(b)(2) or (b)(3)); and
(ii) 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 the entire indebtedness on all Outstanding
Securities and Coupons, if any, of any such series have been
complied with;
(2) (i) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities and Coupons, if any, of such series (A)
money in an amount (in such currency, currencies or currency unit or
units in which any Outstanding Securities and Coupons, if any, of such
series are payable) or (B) in the case of Securities and Coupons, if
any, denominated in Dollars, U.S. Government Obligations or, in the
case of Securities and Coupons, if any, denominated in a Foreign
Currency, Foreign Government Securities, which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal (including any premium) and interest, if any,
under the Securities and Coupons, if any, of such series, money in an
amount or (C) a combination of Clauses (A) and (B), which in any case
of Clauses (A), (B) and (C) is sufficient (in the opinion with respect
to Clauses (B) and (C) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee) to pay and discharge each installment of
principal of (including premium, if any, on), and interest, if any,
on, the Outstanding Securities and Coupons, if any, of such series on
the dates such installments of interest or principal are due (either
at maturity, upon redemption or otherwise, as the case may be) in the
currency, currencies or currency unit or units, in which such
Securities and Coupons, if any, are payable;
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(ii) (A) no Event of Default or event (including such
deposit) which with notice or lapse of time would become an
Event of Default shall have occurred and be continuing on
the date of such deposit and after giving effect to such
deposit, (B) no Event of Default as defined in Clause (5) or
Clause (6) of Section 6.1, or event which with notice or
lapse of time or both would become an Event of Default under
either such clause, shall have occurred within 90 days after
the date of such deposit, and (C) such deposit and the
related intended consequence under Subsection (a)(1) or
Subsection (a)(2) above will not result in any default or
event of default under any material indenture, agreement or
other instrument binding upon the Company or any Subsidiary;
(iii) (A) in the event of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from 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 of Counsel shall confirm
that, the Holders of 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;
(B) in the event of the covenant defeasance option,
the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred; and
(3) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
2.2 or Section 3.1, as the case may be, to be applicable to the
Securities and Coupons, if any, of such series.
(c) Any deposits with the Trustee referred to in Subsection (b)(2)(i)
above will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. If any Outstanding Securities and
Coupons, if any, of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement
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will provide therefor and the Company will make arrangements for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
SECTION 5.4 REINSTATEMENT
If the Trustee is unable to apply any money, U.S. Government
Obligations or Foreign Government Securities in accordance with Section 5.1 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities and Coupons, if any, of such series shall bc revived and reinstated
as though no deposit had occurred pursuant to Section 5.1 until such time as the
Trustee is permitted to apply all such money, U.S. Government Obligations or
Foreign Government Securities in accordance with this Article Five; PROVIDED,
HOWEVER, that if the Company has made any payment of interest on or principal of
(and premium, if any) on any Securities and Coupons, if any, of such series
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such series of Securities and Coupons, if any,
to receive such payment from the money, U.S. Government Obligations or Foreign
Government Securities held by the Trustee.
SECTION 5.5 DEFINITIONS
The following terms, as used in this Article, shall have the following
meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and Coupons, if any, of the series as to which this Section is
specified as applicable as aforesaid and to have satisfied all the obligations
under this Indenture relating to the Securities and Coupons, if any, of such
series (and the Trustee, at the request and expense of the Company, will execute
proper instruments acknowledging the same), except (1) the rights of Holders
thereof to receive, from the trust fund described in Section 5.3(b)(2)(i),
payment of the principal of (and premium, if any) and the interest, if any, on
such Securities and Coupons, if any, when such payments are due, (2) the
Company's obligations with respect to such Securities and Coupons, if any, under
Sections 4.4 and 4.5 (insofar as applicable to Securities of such series), 5.2,
5.4, 11.2 and 11.3 (last paragraph only) the Company rights of optional
redemption, if any, and the Company's obligations to the Trustee under Section
7.7, (3) the rights of Holders of Securities of any series with respect to the
currency or currency units in which they are to receive payments of principal,
premium, if any, and interest, if any, and (4) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, will survive such discharge. The
Company will reimburse the trust fund for any loss suffered by it as a result of
any tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or Foreign Government Securities, as the case may be, or
any principal or interest paid on such obligations, and, subject to the
provisions of Section 7.7, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect to Securities and
Coupons, if any, of any series that are denominated in a Foreign Currency,
securities that are (1) direct obligations of the government that issued or
caused to be issued such currency for the payment
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of which obligations its full faith and credit is pledged or (2) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under Clause (1) or Clause (2), are not callable or redeemable at the option of
the issuer thereof.
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case under Clause (1) or Clause (2), are not callable or redeemable at the
option of the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE SIX
REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
"Event of Default" with respect to any series of Securities means each
one of the events specified below in this Section 6.1, unless it is either
inapplicable to a particular series or is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Medium-Term Debt
Securities Certificate establishing such series of Securities:
(1) default in the payment of any installment of interest upon
any of the Securities of such series, as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or premium, if
any, on any of the Securities of such series, as and when the same
shall become due and payable (subject to Clause (3) below) either at
maturity, upon redemption, by declaration or otherwise; or
(3) default in the making of any payment for a sinking, purchase
or analogous fund provided for in respect of such series of
Securities, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
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(4) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in respect of the Securities of such series, or in this
Indenture contained with respect to such series, for a period of 90
days after the date on which written notice of such failure requiring
the Company to remedy the same and stating that such notice is a
"Notice of Default" hereunder, shall have been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and
the Trustee by the holders of at least 25% in aggregate principal
amount of the Securities of such series at the time Outstanding; or
(5) entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case under any applicable Federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(6) commencement by the Company of a voluntary case under any
applicable Federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent by the Company to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or for any substantial part of its property, or any
general assignment by the Company for the benefit of creditors, or
failure by the Company generally to pay its debts as they become due,
or the taking by the Company of any corporate action in furtherance of
any of the foregoing; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.2 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 each and every such case,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series (except in the case of an
Event of Default specified in Clause (5) or Clause (6) of Section 6.1) may
declare the principal amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series,
together with accrued interest thereon, if any, 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), together with accrued interest thereon, if any, shall become
immediately due and payable. If an Event of Default specified in Clause (5) or
Clause (6) of Section 6.1 occurs, such principle
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amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
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
(i) all overdue interest on all Securities of that series,
(ii) 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 interest thereon at the rate
or rates prescribed therefor in such Securities without
duplication of any amount thereof paid or deposited pursuant to
Clause (i) above or Clause (iii) below,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities without duplication of any amount
thereof paid or deposited pursuant to Clause (i) above or Clause
(ii) above, and
(iv) in Dollars, 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 nonpayment 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 6.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE
The Company covenants that if:
(1) default shall be made in the payment of any installment of
interest on any Security or Coupon as and when the same shall become
due and payable,
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and such default shall have continued for the period of grace provided
for with respect to such Security or Coupon, as the case may be,
(2) default shall be made in the payment of the principal of or
premium, if any, on any Security as and when the same shall have
become due and payable (subject to Clause (3) below), whether at
maturity of the Security or upon redemption or by declaration or
otherwise, and such default shall have continued for any period of
grace provided for with respect to such Security, or
(3) default shall be made in the payment for any sinking,
purchase or analogous fund provided for in respect of any Security as
and when the same shall become due and payable, and such default shall
have continued for any period of grace provided for with respect to
such Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and Coupons, if any, the whole amount then due and
payable on such Securities and Coupons, if any, for principal (and premium, if
any) and interest, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue installments of interest, if any, at the rate or rates
prescribed therefor in such Securities and Coupons, if any, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and Coupons, if
any, and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and Coupons, if any, wherever situated.
If an Event of Default with respect to Securities and Coupons, if any,
of any series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities and/or Coupons of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective
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of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due 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 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
and/or Coupons 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; PROVIDED
that the Trustee may, on the behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official, or be a member of a creditors' or
similar committee.
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES
All rights of action and claims under this Indenture or the Securities
and Coupons, if any, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons, if any, or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and Coupons, if any, in respect of which such judgment has been
recovered.
SECTION 6.6 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 premium,
if any) or interest, upon presentation of the Securities and Coupons, if any,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
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FIRST: to the payment of all amounts due the Trustee under
Section 7.7;
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
Coupons, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities
and/or Coupons for principal (and premium, if any) and interest, if
any, respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 6.7 LIMITATION ON SUITS
No Holder of Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series or, in the case of an Event of
Default specified in Clause (5) or Clause (6) of Section 6.1, of all
series (voting as a class) with respect to which such Event of Default
has occurred and is continuing, 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 or, in the case of an Event of Default specified in Clause (5)
or Clause (6) of Section 6.1, of all series (voting as a class) with
respect to which such Event of Default has occurred and is continuing;
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 (including without limitation the provisions of Section 6.12)
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
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such Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST
Notwithstanding any other provision in this Indenture, the Holder of
any Security or any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 4.6) interest, if any, on such Security or Coupon on the
Stated Maturity or Maturities expressed in such Security (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 6.9 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 and
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 6.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and/or Coupons, if
any, in the last paragraph of Section 4.5, 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 6.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Securities
and/or Coupons 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. Subject to the provisions of
Section 6.7, 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 6.12 CONTROL BY HOLDERS
The Holders of not less than 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
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any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series; PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 7.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Trust Officer or Officers of the
Trustee, determine that the action so directed would involve the
Trustee in personal liability.
SECTION 6.13 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 premium, if any) or
interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund or analogous obligation with respect to
the Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect
to such series, and any Event of Default with respect to such series 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 6.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of a Security
and/or Coupon by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if
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any, on any Security or the payment of interest on any Coupon on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 6.15 WAIVER OF USURY, STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) or Subsection (b) of this Section;
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(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Trust Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, given pursuant to Section 6.12,
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.2 NOTICE OF DEFAULTS
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit to the
Holders of Securities of such series notice as provided in Section 1.6 of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any, on) or interest on any Security
of such series or in the payment of any sinking fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible Trust
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; PROVIDED
FURTHER that in the case of any default of the character specified in Section
6.1(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 90 days after the occurrence of such default. 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 7.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 7.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note,
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coupon, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) 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;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) 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 and
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiries 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;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or counsel, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or counsel
appointed with due care (and, in the case of any agent, with the prior
written consent of the Company; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
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SECTION 7.4 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 assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 7.5 MAY HOLD SECURITIES.
The Trustee, 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 or warrants to purchase Securities and, subject
to Sections 7.8 and 7.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
SECTION 7.6 MONEY HELD IN TRUST.
Except as provided in Section 1.15, money held by the Trustee or any
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required by law. The Trustee or any Paying Agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 7.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time in Dollars 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 in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it
harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based upon, or measured or
determined by, the income of the Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
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including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.1(5) and Section 6.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal, state or foreign bankruptcy,
insolvency or other similar law. The provisions of this Section shall survive
the termination of this Indenture.
SECTION 7.8 DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting interest or
resign with respect to the Securities of that series in the manner and with the
effect provided by, and subject to the provisions of, Section 310(b) of the
Trust Indenture Act and this Indenture.
In the event that the Trustee shall fail to comply with the provisions
of the preceding sentence with respect to the Securities of any series, the
Trustee shall, within 10 days after the expiration of such 90-day period,
transmit, in the manner and to the extent provided in Section 1.6, to all
Holders of Securities of that series notice of such failure.
Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act.
To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any
particular series of Securities other than that series or any series of
securities issued under any subordinated indenture entered into by the Company.
SECTION 7.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee for each series of Securities
hereunder which shall be either (1) a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal or State
authority or (2) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of
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the Commission, which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees;
in either case having a combined capital and surplus of at least $50,000,000. If
such corporation or Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation or Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as trustee
for the Securities of any series issued hereunder. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 7.10 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 7.11.
(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 7.11 shall
not have been delivered to the resigning 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. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 7.8 after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of a series as to which the Trustee has a
conflicting interest for at least six months; or
(2) the Trustee for a series shall cease to be eligible under
Section 7.9 and shall fail to resign after written request therefor by
the Company or by any Holder of Securities of such series; or
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(3) the Trustee shall become incapable of acting; or
(4) the Trustee 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 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
(and, in the case of Clause (1) above, who is a holder of a Security of a series
as to which the Trustee has a conflicting interest) may, on behalf of himself or
herself 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 with respect to such series,
or in the case of Clause (4) above with the respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the 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
of or all such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and such successor Trustee
or Trustees shall comply with the applicable requirements of Section 7.11. 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 7.11, 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 7.11, 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
by giving notice of such event to all Holders of Securities of such series as
provided by 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.
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SECTION 7.11 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.
(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 cotrustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsection (a) or Subsection (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.
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SECTION 7.12 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 that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to Section 311(a) of the Trust Indenture Act
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.14 JUDGMENT CURRENCY
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that if for the purpose of obtaining a judgment in any
court with respect to any obligation of the Company hereunder or under any
Security or Coupon, it shall become necessary to convert into any other currency
or currency unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made at the
Conversion Rate (as defined below) as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment is
made and there shall occur a change between such Conversion Rate and the
Conversion Rate as in effect on the date of payment or distribution, the Company
agrees, to the fullest extent that it may effectively do so under applicable
law, to pay such additional amounts (if any) as may be necessary to ensure that
the amount paid is the amount in such other currency or currency unit which,
when converted at the Conversion Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such Security or Coupon.
Any amount due from the Company under this Section 7.14 shall be due as a
separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security or
Coupon so that in any event the Company's obligations hereunder or under such
Security or Coupon will be effectively maintained as obligations in such
currency or currency unit. In no event, however, shall the Company be required
to pay more in the currency or currency unit stated to be due hereunder or under
such Security or Coupon.
For purposes of this Section 7.14, "Conversion Rate" shall mean, as of
any date, for any currency or currency unit into which an amount due hereunder
or under any Security or
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Coupon is to be converted, the noon buying rate in the other currency or
currency unit for that currency or currency unit for cable transfers quoted in
New York City on such date as certified for customs purposes by the Federal
Reserve Bank of New York. If such rates are not available for any reason with
respect to one or more currencies or currency units for which a Conversion Rate
is required, the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in New York City or in the country of issue of the currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is more than one
market for dealing in a currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would, as determined in its sole
discretion and without liability on the part of the Exchange Rate Agent,
purchase such currency or currency unit in order to make payments in respect of
such Securities. If there does not exist a quoted exchange rate in any currency
or currency unit (the "First Currency") for another currency unit (the "Second
Currency"), then the Conversion Rate for the Second Currency shall be equal to
equivalent amount in the First Currency obtained by converting the Specified
Amount of each Component Currency of the Second Currency into the First Currency
at the Conversion Rate (determined as provided above) for each such Component
Currency on such date (or, if the First Currency is a currency unit for which
there is no quoted exchange rate in any Component Currency, by converting the
Specified Amount of each Component Currency of the Second Currency into the
Specified Amount of each Component Currency of the First Currency at the
Conversion Rate (determined as provided above) for each such Component Currency
on such date).
SECTION 7.15 APPOINTMENT OF AUTHENTICATING AGENT
The Company may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 4.5, 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 Trustee and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal, state or District of Columbia
authority or the equivalent foreign authority, in the case of an Authenticating
Agent who is not organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia. 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
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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 such Authenticating Agent, shall continue to be an
Authenticating Agent; PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Company may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Trustee. 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 Company may appoint a successor Authenticating
Agent which shall be acceptable to the Trustee and shall mail, or cause to be
mailed, written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, 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 herein issued
under the within-mentioned Indenture.
_____________________________________
as Trustee
By: _________________________________
As Authenticating Agent
By:__________________________________
Authorized [Officer] [Signatory]
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If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
(1) semiannually, not later than 15 days after each Regular
Record Date, a list in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of each series of
Registered Securities as of the preceding Regular Record Date, as the
case may be, and such information concerning the Holders of Bearer
Securities which is known to the Company or any Paying Agent other
than the Company; PROVIDED, HOWEVER, that the Company and such Paying
Agents shall have no obligation to investigate any matter relating to
any Holder of a Bearer Security or a Coupon; and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date
not more than 15 days prior to the time such list is furnished, and
such information concerning the Holders of Bearer Securities which is
known to the Company or any such Paying Agent; PROVIDED, HOWEVER, that
the Company and such Paying Agents shall have no obligation to
investigate any matter relating to any Holder of a Bearer Security or
a Coupon.
Notwithstanding the foregoing Clauses (1) and (2), at such times as the Trustee
is the Security Registrar and Paying Agent with respect to a particular series
of Securities, no such list shall be required to be furnished in respect of such
series
SECTION 8.2 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 of each series contained in the
most recent list furnished to the Trustee as provided in Section 8.1 and the
names and addresses of Holders of each series received by the Trustee in any
capacity as Security Registrar or Paying Agent. The
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Trustee may destroy any list furnished to it as provided in Section 8.1 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, 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 the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 8.3 REPORTS BY TRUSTEE
(a) Within 60 days after May 15 of each year commencing with the May
15 following the Issue Date, 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 in the manner provided pursuant thereto.
(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 the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Securities are listed on any
stock exchange.
SECTION 8.4 REPORTS BY COMPANY
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time in such rules and
regulations;
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(3) transmit by mail to all Holders of Securities, in the manner
and to the extent provided in the Trust Indenture Act with respect to
reports to be transmitted pursuant to the requirements of the Trust
Indenture Act, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to Clause (1) or Clause
(2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) promptly notify the Trustee when any Securities are listed
on any stock exchange.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest, if
any, 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 occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if
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such successor Person had been named as the Company herein; and in the event of
any such conveyance or transfer, the Company (which term shall for this purpose
mean the Person named as the "Company" in the first paragraph of this instrument
or any successor Person which shall have theretofore become such in the manner
prescribed in Section 9.1) shall be discharged from all liability under this
Indenture and in respect of the Securities and may be dissolved and liquidated.
In the event of any such conveyance or transfer, the Company as the predecessor
Person shall be relieved of all such obligations and may be dissolved, wound-up
or liquidated at any time thereafter.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon 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).
(3) to add any additional Events of Default with respect to all
or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable);
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; 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; PROVIDED that any such addition or change
shall not adversely affect the interests of the Holders of Securities
of any series or any related Coupons in any material respect;
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(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any series
as permitted by Sections 2.2 and 3.1;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.11(b);
(8) if allowed under applicable laws and regulations, to permit
payment in the United States of principal, premium or interest on
Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities of
one or more series in addition to or in place of certificated
Securities;
(10) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein PROVIDED such other provision as may be made shall
not adversely affect the interests of the Holders of outstanding
Securities of any series in any material respect;
(11) to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED such other provisions
as may be made shall not adversely affect the interests of the Holders
of outstanding Securities of any series in any material respect; or
(12) to secure the Securities of any or all series.
SECTION 10.2 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 all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture 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,
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(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
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 6.2, or change any Place of Payment where, or the currency,
currencies or currency unit or units in which, any Security or the
principal, any premium or the 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 affect adversely the terms, if
any, of conversion of any Security into shares or other securities of
the Company or of any other corporation,
(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,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in
the places and for the purposes specified in Section 11.2 for such
series, or
(4) modify any of the provisions of this Section or Section
6.13, except to increase any such percentage or to provide with
respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 2.2 or Section 3.1, as the
case may be, without the consent of any Holder) 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 Section 7.11(b) and 10.1(7).
For purposes of this Section 10.2, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
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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.
In connection with any supplemental indenture or waiver under this
Article Ten, the Company may, but shall not be obligated to, offer to any Holder
who consents to such supplemental indenture, or to all Holders, consideration
for such Holder's consent to such supplemental indenture.
SECTION 10.3 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
(in addition to the opinion which the Trustee is entitled to receive pursuant to
Section 2.2), and (subject to Section 7.1) 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, immunities or liabilities under this
Indenture or otherwise.
SECTION 10.4 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, unless it makes a change described in any of Clauses (1)
through (4) of Section 10.2, in which case, the supplemental indenture shall
bind only each Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security; PROVIDED that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and on or after such respective dates.
SECTION 10.5 CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 10.6 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 ELEVEN
COVENANTS
SECTION 11.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company covenants and agrees for the benefit of each series of
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any, on) and interests if any, on the Securities
and Coupons, if any, of that series in accordance with the terms of the
Securities and Coupons, if any, of such series and this Indenture.
SECTION 11.2 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 such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as both Registered or Bearer Securities or
only as Bearer Securities, the Company will maintain (1) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related Coupons may be presented or surrendered for payment in the
circumstances described in the proviso contained in the last sentence of this
first paragraph of Section 11.2 (and not otherwise), (2) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 11.5); PROVIDED, HOWEVER, that if the Securities of
that series are listed on any 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 any required city located outside the
United States, so long as the Securities of that series are listed on such
exchange, and (3) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States, an
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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 and the Holders of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 11.5) at the London office of the Trustee (or an
agent with a London office appointed by the Trustee and acceptable to the
Company), and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands. No payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; PROVIDED, HOWEVER, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any additional amounts payable on
Securities of such series pursuant to Section 11.5) shall be made at the office
of the Company's Paying Agent in the Borough of Manhattan, The City of New York,
if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 11.3 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 (and premium, if any, on) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the relevant currency (or a sufficient number
of currency units, as the case may be) sufficient to pay the principal (and
premium, if any, on) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any, on) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest, if any, on Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in making of any
payment of principal (and premium, if any, on) or interest, if any, on
the Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and Coupons, if any, shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense and at the direction of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains unclaimed and that, after a
date specified herein, which
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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.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
SECTION 11.4 STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year if any Securities are outstanding under this Indenture, a
written certificate signed by the chairman, chief executive officer, the chief
financial officer, the chief accounting officer of the Company or any person
acting in a similar capacity, stating that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his or her
supervision;
(2) to his or her knowledge, based on such review, the Company
has fulfilled all its obligations, and has complied with all
conditions and covenants, under this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such
obligation, condition or covenant, specifying each such default known
to him or her and the nature and status thereof.
For purposes of this Section 11.4, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 11.5 ADDITIONAL AMOUNTS
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any related Coupon additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or
payment of any related Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable) in any provisions
hereof shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the
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Company's Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related Coupons who are United States Aliens (as defined in such
Securities) without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such Payments
to such Holders of Securities or Coupons and the Company will pay to the Trustee
or such Paying Agent the additional amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.1 APPLICABILITY OF ARTICLE
The Company may reserve the right to redeem and pay before Stated
Maturity all or any part of the Securities of any series, either by optional
redemption, sinking or purchase fund or analogous obligation or otherwise, by
provision therefor in the form of Security for such series established and
approved pursuant to Section 2.2 or Section 3.1, as the case may be, and on such
terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 2.2 or Section 3.1, as the case may be. 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
2.2 or Section 3.1, as the case may be, for Securities of any series) in
accordance with this Article.
SECTION 12.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
If the Company shall desire to exercise the right to redeem all, or,
as the case may be, any part of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notifying the Trustee of
such Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities (1) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (2) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
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SECTION 12.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities 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. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.4 NOTICE OF REDEMPTION
Notice of redemption shall be given not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
as provided in Section 1.6.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the Redemption Date will
be paid as specified in said notice, that the redemption is pursuant to the
sinking fund, if such is the case, and that on and after said Redemption Date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue unless the Company shall default in the payment of the Redemption Price
(including any applicable accrued interest). If less than all the Securities of
any series are to be redeemed, the notice of redemption shall specify the
registration and, if any, CUSIP, ISIN or Common Code numbers of the Securities
of such series to be redeemed, and, if only Bearer Securities of any series are
to be redeemed, and if such Bearer Securities may be exchanged for Registered
Securities, the last date on which exchanges of Bearer Securities for Registered
Securities not
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subject to redemption may be made. In case any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
Redemption Date, upon surrender of such Security and any Coupons appertaining
thereto, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof and with appropriate Coupons will be issued,
or, in the case of Registered Securities providing appropriate space for such
notation, at the option of the Holders, the Trustee, in lieu of delivering a new
Security or Securities as aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.
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 12.5 DEPOSIT OF REDEMPTION PRICE
On or before 11:00 a.m. on 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 11.3)
an amount of money in the relevant currency (or a sufficient number of currency
units, as the case may be) 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.
SECTION 12.6 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 is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
otherwise provided in Section 11.2) and, unless otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, only upon
presentation and surrender of Coupons for such interest; PROVIDED FURTHER that,
unless otherwise specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 4.6.
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
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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 11.2) and, unless otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, 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 12.7 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 duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities (with appropriate
Coupons) of the same series and Stated Maturity, 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 or, in the case of Registered Securities providing appropriate space
for such notation, at the option of the Holder, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the Payment of the redeemed portion thereof.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 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 2.2 or Section 3.1, as the case may be, 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 13.2. 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.
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SECTION 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company (1) may deliver Outstanding Securities (including all
unmatured Coupons appertaining thereto) of a series (other than any previously
called for redemption) 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 the outstanding principal amount thereof credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 13.3 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 13.2 and will also deliver to the Trustee any Securities
(including all unmatured Coupons appertaining thereto) to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 12.3 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 12.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 12.6
and 12.7.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED
A meeting of Holders of Securities of any 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.
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 14.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London, as the Trustee shall determine.
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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 20 nor more than 180 days prior to the date fixed for the
meeting; PROVIDED, HOWEVER, that publication shall occur at least twice, with
each publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 25% 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 14.1, 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 20 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London, for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in Subsection (a) of this Section.
SECTION 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 (1) a Holder of one or more Outstanding Securities of
such series or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 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. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined 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 14.2(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.
Except as limited by the proviso to Section 10.2, and subject to the
provisions described in the next succeeding paragraph, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the
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affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; PROVIDED, HOWEVER, that 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 equal to or
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.
With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a specified
percentage of Outstanding Securities of all series affected thereby (acting as
one class), only the principal amount of Outstanding Securities of any series
represented at a meeting or adjourned meeting duly reconvened at which a quorum
is present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
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 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 holder 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 14.2(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.
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(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 (or the equivalent thereof)
principal amount of the Outstanding Securities of such series held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.2 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 14.2 and, if
applicable, Section 14.4. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
APEX SILVER MINES LIMITED
By ___________________________
[SEAL]
Attest:
____________________________
______________________________
as Trustee,
By ___________________________
[SEAL]
Attest:
____________________________
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of _________, _____, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is a __________________ of APEX SILVER MINES LIMITED, 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.
___________________________________
Notary Public
Notary Public, State of New York
No. _________
Qualified in _________
Commission Expires _________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________, ____, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is a _______________________ of _________, 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.
___________________________________
Notary Public
Notary Public, State of New York
No. _________
Qualified in _________
Commission Expires _________
89
<PAGE>
EXHIBIT A
[RESERVED]
A-1
<PAGE>
EXHIBIT B
[FORMS OF CERTIFICATION]
B-1
<PAGE>
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States, or,
if a beneficial interest in the Securities is being acquired by a United States
person, that such United States person is a financial institution as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is
acquiring through a financial institution, and that the Securities were held by
a financial institution that has agreed to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and that it is not purchasing for offer
to resell or for resale inside the United States.
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, or 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.
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 such Securities.
B-1-1
<PAGE>
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
_____________,____ the date
determined as provided in the
Indenture]
[Name of Person Entitled to Receive
Bearer Security]
____________________________________
(Authorized Signatory)
Name:
Title:
B-1-2
<PAGE>
EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL
IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify with respect to $_________ principal amount of the
above-captioned Securities (i) 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 (ii) 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.
Date: _____________, ____
[To be dated no earlier than
The Exchange Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL]
By ____________________________________
B-2-1
<PAGE>
EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
APEX SILVER MINES LIMITED
[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.
Date: _______________, ____
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL]
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
APEX SILVER MINES LIMITED
[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, the above-captioned
Securities held by you for our account are not beneficially owned by a United
States person, and have not been acquired by or on behalf of a United States
person, or for offer to resell or for resale to a United States person or any
person inside the United States, or, if any of such Securities held by you for
our account are beneficially owned by a United States person, (i) 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 purchasing for its own
account or has acquired such Securities through a financial institution and (ii)
such Securities are held by a financial institution that has agreed to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder and that it did
not purchase for offer to resell or for resale inside the United States.
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 or 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 yet able to certify and as to
which we understand interest cannot be credited unless and until we are able to
so certify.
B-4-1
<PAGE>
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.
Date: _____________, ____
[To be dated on or after
the 15th day before the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
_____________________________________
(Authorized Signature)
Name:
Title:
B-4-2
<PAGE>
EXHIBIT B.5
[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]
By your purchase of the securities referred to in the accompanying
confirmation (the "Securities"):
You represent that you are not a United States person or, if you are a
United States person, you are a financial institution as that term is defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are
acquiring through a financial institution, and that the Securities will be held
by a financial institution that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder and are not purchasing the
Securities on behalf of any United States person other than such a financial
institution or for offer to resell or for resale inside the United States.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of such Securities, directly or indirectly, in the United States or to any
United States person other than such a financial institution and (b) you agree
that you will deliver to all purchasers of such Securities from you a written
statement in this form.
As used herein, "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 and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
B-5-1
<PAGE>
Exhibit 4.3
__________________________________________________________________
APEX SILVER MINES LIMITED
and
__________________
as Trustee
_____________________
INDENTURE
Dated as of _________
_____________________
Providing for the Issuance of
Subordinated Debt Securities in Series
__________________________________________________________________
<PAGE>
APEX SILVER MINES LIMITED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE PROVISIONS*
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
---------------------------- -----------------------------
<S> <C> <C>
Section 310 (a)(1)..................... 7.9
(a)(2)..................... 7.9
(a)(3) Not Applicable
(a)(4)..................... Not Applicable
(b)........................ 7.8
7.10
Section 311
(a)........................ 7.13(a)
7.13(c)
(b)........................ 7.13(b)
(b)(2)..................... 8.3(a)(2)
8.3(b)
Section 312
(a)........................ 8.1
8.2(a)
(b)........................ 8.2(b)
(c)........................ 8.2(c)
Section 313
(a)........................ 8.3(a)
(b)........................ 8.3(b)
(c)........................ 8.3(d)
(d)........................ 8.3(c)
Section 314
(a)........................ 8.4
(b)........................ Not Applicable
(c)(1)..................... 1.2
(c)(2)..................... 1.2
(c)(3)..................... Not Applicable
(d)........................ Not Applicable
(e)........................ 1.2
</TABLE>
- ------------------------------
* This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
<PAGE>
<TABLE>
<CAPTION>
TRUST INDENTURE ACT
SECTION INDENTURE SECTION
---------------------------- -----------------------------
<S> <C> <C>
Section 315
(a)........................ 7.1(a)
(b)........................ 7.2
8.3(a)(6)
(c)........................ 7.1(b)
(d)........................ 7.1(c)
(d)(1)..................... 7.1(a)
(d)(2)..................... 7.1(c)(2)
(d)(3)..................... 7.1(c)(3)
(e)........................ 6.14
Section 316
(a)........................ 1.1
(a)(1)(A).................. 6.2
6.12
(a)(1)(B).................. 6.13
(a)(2)..................... Not Applicable
(b)........................ 6.8
Section 317
(a)(1)..................... 6.3
(a)(2)..................... 6.4
(b)........................ 11.3
Section 318
(a)........................ 1.7
</TABLE>
iii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................... 1
SECTION 1.1 DEFINITIONS.......................................................................................... 1
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS................................................................. 11
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE............................................................... 12
SECTION 1.4 ACTS OF HOLDERS...................................................................................... 12
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY................................................................ 14
SECTION 1.6 NOTICE TO HOLDERS; WAIVER............................................................................ 15
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.................................................................... 16
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS............................................................. 16
SECTION 1.9 SUCCESSORS AND ASSIGNS............................................................................... 16
SECTION 1.10 SEPARABILITY CLAUSE.................................................................................. 16
SECTION 1.11 BENEFITS OF INDENTURE................................................................................ 16
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS............................. 16
SECTION 1.13 GOVERNING LAW........................................................................................ 16
SECTION 1.14 LEGAL HOLIDAYS....................................................................................... 17
SECTION 1.15 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED...................................................... 17
SECTION 1.16 PAYMENT TO BE IN PROPER CURRENCY..................................................................... 17
SECTION 1.17 LANGUAGE OF NOTICES, ETC............................................................................. 18
SECTION 1.18 CHANGES IN EXHIBITS.................................................................................. 18
SECTION 1.19 COUNTERPART ORIGINALS................................................................................ 18
ARTICLE TWO ISSUANCE OF SECURITIES..................................................................................... 18
SECTION 2.1 CREATION OF SECURITIES IN AMOUNT UNLIMITED........................................................... 18
SECTION 2.2 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF SECURITIES OTHER THAN
MEDIUM-TERM DEBT SECURITIES.......................................................................... 18
ARTICLE THREE ISSUANCE OF MEDIUM-TERM DEBT SECURITIES.................................................................. 22
SECTION 3.1 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF MEDIUM-TERM DEBT
SECURITIES........................................................................................... 22
SECTION 3.2 FORM OF MEDIUM-TERM DEBT SECURITIES.................................................................. 27
ARTICLE FOUR THE SECURITIES............................................................................................ 27
SECTION 4.1 FORM AND DENOMINATION................................................................................ 27
SECTION 4.2 EXECUTION, DELIVERY, DATING AND AUTHENTICATION....................................................... 28
SECTION 4.3 TEMPORARY SECURITIES................................................................................. 31
SECTION 4.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.................................................. 33
SECTION 4.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..................................................... 36
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 4.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED....................................................... 37
SECTION 4.7 PERSONS DEEMED OWNERS................................................................................ 38
SECTION 4.8 CANCELLATION......................................................................................... 38
SECTION 4.9 COMPUTATION OF INTEREST.............................................................................. 39
SECTION 4.10 CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES.............................................. 39
SECTION 4.11 SECURITIES IN GLOBAL FORM............................................................................ 44
SECTION 4.12 CUSIP, ISIN AND COMMON CODE NUMBERS.................................................................. 46
ARTICLE FIVE SATISFACTION AND DISCHARGE................................................................................ 47
SECTION 5.1 SATISFACTION AND DISCHARGE OF INDENTURE IN RESPECT OF ANY SERIES OF SECURITIES....................... 47
SECTION 5.2 APPLICATION OF TRUST MONEY........................................................................... 48
SECTION 5.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES................................... 48
SECTION 5.4 REINSTATEMENT........................................................................................ 51
SECTION 5.5 DEFINITIONS.......................................................................................... 51
ARTICLE SIX REMEDIES................................................................................................... 52
SECTION 6.1 EVENTS OF DEFAULT.................................................................................... 52
SECTION 6.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT................................................... 53
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE...................................... 54
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM..................................................................... 55
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.......................................... 56
SECTION 6.6 APPLICATION OF MONEY COLLECTED....................................................................... 56
SECTION 6.7 LIMITATION ON SUITS.................................................................................. 57
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST............................ 58
SECTION 6.9 RESTORATION OF RIGHTS AND REMEDIES................................................................... 58
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE....................................................................... 58
SECTION 6.11 DELAY OR OMISSION NOT WAIVER......................................................................... 58
SECTION 6.12 CONTROL BY HOLDERS................................................................................... 58
SECTION 6.13 WAIVER OF PAST DEFAULTS.............................................................................. 59
SECTION 6.14 UNDERTAKING FOR COSTS................................................................................ 59
SECTION 6.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.............................................................. 60
ARTICLE SEVEN THE TRUSTEE.............................................................................................. 60
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.................................................................. 60
SECTION 7.2 NOTICE OF DEFAULTS................................................................................... 61
SECTION 7.3 CERTAIN RIGHTS OF TRUSTEE............................................................................ 61
SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES............................................... 62
SECTION 7.5 MAY HOLD SECURITIES.................................................................................. 63
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 7.6 MONEY HELD IN TRUST.................................................................................. 63
SECTION 7.7 COMPENSATION AND REIMBURSEMENT....................................................................... 63
SECTION 7.8 DISQUALIFICATION; CONFLICTING INTERESTS.............................................................. 64
SECTION 7.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.............................................................. 64
SECTION 7.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.................................................... 65
SECTION 7.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR............................................................... 66
SECTION 7.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.......................................... 67
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.................................................... 68
SECTION 7.14 JUDGMENT CURRENCY.................................................................................... 68
SECTION 7.15 APPOINTMENT OF AUTHENTICATING AGENT.................................................................. 69
ARTICLE EIGHT HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................................................ 71
SECTION 8.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS............................................ 71
SECTION 8.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS............................................... 71
SECTION 8.3 REPORTS BY TRUSTEE................................................................................... 72
SECTION 8.4 REPORTS BY COMPANY................................................................................... 72
ARTICLE NINE CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER............................................................. 73
SECTION 9.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS................................................. 73
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED......................................................................... 73
ARTICLE TEN SUPPLEMENTAL INDENTURES.................................................................................... 74
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS................................................... 74
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...................................................... 75
SECTION 10.3 EXECUTION OF SUPPLEMENTAL INDENTURES................................................................. 77
SECTION 10.4 EFFECT OF SUPPLEMENTAL INDENTURES.................................................................... 77
SECTION 10.5 CONFORMITY WITH TRUST INDENTURE ACT.................................................................. 77
SECTION 10.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES................................................... 77
ARTICLE ELEVEN COVENANTS............................................................................................... 78
SECTION 11.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST........................................................... 78
SECTION 11.2 MAINTENANCE OF OFFICE OR AGENCY...................................................................... 78
SECTION 11.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.................................................... 79
SECTION 11.4 STATEMENT BY OFFICERS AS TO DEFAULT.................................................................. 81
SECTION 11.5 ADDITIONAL AMOUNTS................................................................................... 81
</TABLE>
vi
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE TWELVE REDEMPTION OF SECURITIES................................................................................ 82
SECTION 12.1 APPLICABILITY OF ARTICLE............................................................................. 82
SECTION 12.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE................................................................ 82
SECTION 12.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.................................................... 82
SECTION 12.4 NOTICE OF REDEMPTION................................................................................. 83
SECTION 12.5 DEPOSIT OF REDEMPTION PRICE.......................................................................... 84
SECTION 12.6 SECURITIES PAYABLE ON REDEMPTION DATE................................................................ 84
SECTION 12.7 SECURITIES REDEEMED IN PART.......................................................................... 85
ARTICLE THIRTEEN SINKING FUNDS......................................................................................... 85
SECTION 13.1 APPLICABILITY OF ARTICLE............................................................................. 85
SECTION 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES................................................ 85
SECTION 13.3 REDEMPTION OF SECURITIES FOR SINKING FUND............................................................ 86
ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES..................................................................... 86
SECTION 14.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED............................................................ 86
SECTION 14.2 CALL, NOTICE AND PLACE OF MEETINGS................................................................... 86
SECTION 14.3 PERSONS ENTITLED TO VOTE AT MEETINGS................................................................. 87
SECTION 14.4 QUORUM; ACTION....................................................................................... 87
SECTION 14.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.................................. 88
SECTION 14.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS...................................................... 89
ARTICLE FIFTEEN SUBORDINATION.......................................................................................... 89
SECTION 15.1 AGREEMENT TO SUBORDINATE............................................................................. 89
SECTION 15.2 LIQUIDATION, DISSOLUTION, BANKRUPTCY................................................................. 89
SECTION 15.3 DEFAULT ON SENIOR INDEBTEDNESS....................................................................... 90
SECTION 15.4 ACCELERATION OF PAYMENT OF SECURITIES................................................................ 91
SECTION 15.5 WHEN DISTRIBUTIONS MUST BE PAID OVER................................................................. 91
SECTION 15.6 SUBROGATION.......................................................................................... 91
SECTION 15.7 RELATIVE RIGHTS...................................................................................... 91
SECTION 15.8 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY......................................................... 92
SECTION 15.9 RIGHTS OF TRUSTEE AND PAYING AGENT................................................................... 92
SECTION 15.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE............................................................. 92
SECTION 15.11 ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO ACCELERATE........................ 93
SECTION 15.12 TRUST MONEYS NOT SUBORDINATED........................................................................ 93
SECTION 15.13 TRUSTEE ENTITLED TO RELY UPON ANY PAYMENT OR DISTRIBUTION............................................ 93
SECTION 15.14 TRUSTEE TO EFFECTUATE SUBORDINATION.................................................................. 93
SECTION 15.15 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS............................................. 94
SECTION 15.16 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
</TABLE>
vii
<PAGE>
<TABLE>
<S> <C> <C>
SUBORDINATION PROVISIONS............................................................................. 94
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
EXHIBIT A [Reserved]
EXHIBIT B.1 Form of Certificate to be given by Person entitled to receive Bearer Security
EXHIBIT B.2 Form of Certificate to be given by Euroclear and CEDEL in connection with the
Exchange of a portion of Temporary Global Security.
EXHIBIT B.3 Form of Certificate to be given by Euroclear and CEDEL 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
EXHIBIT B.5 Form of Confirmation to be Sent to Purchasers of Bearer Securities
</TABLE>
viii
<PAGE>
INDENTURE dated as of ______________, ____, between APEX
SILVER MINES LIMITED, a corporation duly organized and existing under
the laws of the Cayman Islands (herein called the "Company"), having
its registered office at Caledonian House, Jennett Street, Georgetown,
Grand Cayman, Cayman Islands, British West Indies, and
___________________, as Trustee (herein called the "Trustee"), the
office of the Trustee at which at the date hereof its corporate trust
business is principally administered being __________________.
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
subordinated 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 covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
<PAGE>
(d) 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; and
(e) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance
with generally accepted accounting principles.
Certain terms, used principally within an Article of this Indenture, may be
defined in that Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 7.15 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Blockage Notice" has the meaning specified in Section 15.3.
"Board of Directors" means either the board of directors of the Company,
any executive officer of the Company duly authorized to act in the name of or on
behalf of such board of directors or any committee consisting of two or more
persons, who need not be directors, duly authorized to act in the name of or on
behalf of such 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.
"Business Day," when used with respect to any Place of Payment or place of
publication, means each day on which commercial banks and foreign exchange
markets settle payments in
2
<PAGE>
the Place of Payment or place of publication, or as specified for a series of
Securities pursuant to Section 2.2 or Section 3.1, as the case may be. Unless
otherwise specified pursuant to Section 2.2 or Section 3.1, as the case may be,
when used with respect to Securities bearing interest at a rate or rates
determined by reference to London interbank offered rates for deposits in U.S.
Dollars, "Business Day" shall exclude any day on which commercial banks and
foreign exchange markets do not settle payments in London.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request," "Request of the Company," "Company Order" or "Order of
the Company" means a written request or order signed in the name of the Company
by its Chairman of the Board, its Chief Executive Officer, its Chief Operating
Officer, President, a Vice President or any person acting in a similar capacity,
and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Chief Financial Officer, its Chief Accounting Officer,
Secretary, an Assistant Secretary or any person acting in a similar capacity,
and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 4.10(i).
"Conversion Date" has the meaning specified in Section 4.10(e).
"Conversion Rate" has the meaning specified in Section 7.14.
"Corporate Trust Office" means the principal office of the Trustee in
_______________, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is
________________, except that with respect to the presentation of Securities (or
Coupons, if any, representing an installment of interest) for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted.
"Corporation" includes corporations, associations, companies, limited
liability companies, partnerships and business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 4.6.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 2.2 or 3.1, with respect to Securities of any series issuable or
issued as a Global Security,
3
<PAGE>
_________________ or any successor thereto registered as a clearing agency under
the Exchange Act or other applicable statute or regulation.
"Designated Senior Indebtedness" means any Senior Indebtedness the
principal amount of which is $25 million or more that has been designated by the
Company as Designated Senior Indebtedness.
"Discharged" has the meaning specified in Section 5.5.
"Dollar," "U.S. Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 4.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 4.10(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means the operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent" means the entity appointed by the Company pursuant to
Section 1.4(g). Unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, the Luxembourg Stock Exchange shall act as
Exchange Rate Agent for purposes of Section 4.10 in the case of each series of
Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex or a
certificate setting forth (1) the applicable Official Currency Unit Exchange
Rate and (2) the Dollar or Foreign Currency or currency unit amounts of
principal, premium, if any, and interest, if any, respectively (on an aggregate
basis and on the basis of a Security having a principal amount of 1,000 units in
the relevant currency or currency unit), payable on the basis of such Official
Currency Unit Exchange Rate, sent (in the case of a telecopy or telex) or
executed (in the case of a certificate) by the Chairman, Controller or any
Assistant Controller or by the Treasurer or any Assistant Treasurer of the
Company or any person acting in a similar capacity and delivered to the Trustee;
such telecopy, tested telex or certificate need not comply with Section 1.2.
"Foreign Currency" means any currency, including, without limitation, the
ECU, issued by the government of one or more countries other than the United
States of America or by a recognized confederation or association of such
governments.
4
<PAGE>
"Foreign Government Securities" has the meaning specified in Section 5.5.
"Funded Debt" means any Indebtedness maturing by its terms more than one
year from the date of the issuance thereof, including any Indebtedness renewable
or extendible at the option of the obligor to a date later than one year from
the date of the original issuance thereof.
"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or a Coupon,
the bearer thereof.
"Indebtedness" of any Person means all indebtedness representing money
borrowed which is created, assumed, incurred or guaranteed in any manner by such
Person or for which such Person is otherwise responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds to or invest in,
others).
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 2.2 and Section 3.1, as the case may be.
"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.
"Issue Date" means, with respect to any Securities of a series, the date on
which such Securities are authenticated and delivered pursuant to this
Indenture.
"Market Exchange Rate" has the meaning specified in Section 4.10(i).
"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.
"Medium-Term Debt Securities" has the meaning specified in Section 3.1.
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"Medium-Term Debt Securities Certificate" shall mean a certificate signed
by the Chairman of the Board, the Chief Executive Officer, the Chief Operating
Officer, the President, any Vice President or any person acting in a similar
capacity, the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, the Controller, any Secretary or Assistant Treasurer, Assistant
Controller or Assistant Secretary of the Company, or any person acting in a
similar capacity or any other employee of the Company designated by a Board
Resolution as having the authority to deliver a Medium-Term Debt Securities
Certificate hereunder.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the Chief Operating Officer, the President,
any Vice President or any person acting in a similar capacity, and by the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, the Controller,
the Secretary or any Assistant Treasurer, Assistant Controller, Assistant
Secretary or any person acting in a similar capacity, of the Company, and
delivered to the Trustee. Each such Officers' Certificate shall contain the
statements provided in Section 1.2 if and to the extent required by the
provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any payment
to be made hereunder, the exchange rate between the relevant currency unit and
the currency or currency unit of payment calculated by the Exchange Rate Agent
for the Securities of the relevant series (in the case of ECU, reported by the
Commission of the European Communities and on the date hereof based on the rates
in effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of ECU), on the Business Day (in the city in which such Exchange Rate
Agent has its principal office) immediately preceding delivery of any Exchange
Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Company. Each Opinion of Counsel shall contain the
statements provided in Section 1.2 if and to the extent required by the
provisions of such Section.
"Original Issue Discount Security" means (1) 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 6.2,
and (2) any other security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding" or "outstanding," when used with respect to Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered
or deemed delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount and in the required currency or currency unit 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 that, if such Securities are to
be redeemed, notice of such redemption has been duly given
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pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(3) Securities which have been paid pursuant to Section 4.5 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
a quorum is present at a meeting of Holders of Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting, (1) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2, (2) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on the date of such determination
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on the
date of such determination) of the principal amount (or, in the case of an
Original Issue Discount Security, of the amount determined as provided in (1)
above) of such Security, and (3) 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 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 the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Payment Blockage Period" has the meaning specified in Section 15.3
"Person" or "person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or other similar
entity.
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"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on the Securities of that series are payable as specified in
accordance with Section 2.2 or Section 3.1, as the case may be.
"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 4.5 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.
"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, in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or definitive
global registered form).
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 2.2 or Section 3.1, as the case may be, which
date shall be, unless otherwise specified pursuant to Section 2.2 or Section
3.1, as the case may be, the fifteenth day preceding such Interest Payment Date,
whether or not such day shall be a Business Day.
"Representative" means any trustee, agent or representative (if any) for
any issue of Senior Indebtedness.
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Trust Officer," when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case of
any Bearer Security, shall include where appropriate any Coupons appertaining
thereto.
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"Security Register" has the meaning specified in Section 4.4.
"Security Registrar" means the Person appointed as the initial Security
Registrar in Section 4.4 or any Person appointed by the Company as a successor
or replacement Security Registrar.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on, (1) all the Company's other indebtedness for money borrowed, other than the
Securities, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, except such indebtedness as is by its
terms expressly stated to be not superior in right of payment to the Securities
or to rank pari passu with the Securities and (2) any deferrals, renewals or
extensions of any such Senior Indebtedness; provided, however, that Senior
Indebtedness shall not include (i) any obligation of the Company to any
Subsidiary and (ii) any liability for Federal, state, local or other taxes owed
or owing by the Company. The term "indebtedness for money borrowed" as used
herein shall include, without limitation, any obligation of, or any obligation
guaranteed by, the Company for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, and any
deferred obligation for the payment of the purchase price of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 4.6.
"Specified Amount" has the meaning specified in Section 4.10(i).
"Stated Maturity," when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) 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 a majority of the Voting Shares of which
are at the time owned or controlled, directly or indirectly, by the Company or
by one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, and as in force on the date as of which
this instrument is executed, except as provided in Section 10.5.
"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.
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"U.S. Government Obligations" has the meaning specified in Section 5.5.
"Valuation Date" has the meaning specified in Section 4.10(e).
"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," including, without
limitation, any assistant vice president.
"Voting Shares" means, with respect to any Corporation, securities of any
class or classes of capital stock in such Corporation entitling the holders
thereof (whether at all times or at the times that such class of capital stock
has voting power by reason of the happening of any contingency) to vote in the
election of members or the board of directors of comparable body of such
Corporation.
"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
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 an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Unless expressly otherwise specified with respect to any certificate
or opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 11.4)
shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(4) a statement as to whether or not, 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 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 such 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
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of any series may be embodied in and evidenced by (1) one
or more instruments of substantially similar tenor signed by such Holders in
person or by proxies or agents duly appointed in writing, (2) the record of such
Holders voting in favor thereof, either in person or by proxies or agents duly
appointed in writing, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of Article Fourteen, or
(3) a combination of any such record and one or more instruments of
substantially similar tenor signed by such Holders in person or by proxies or
agents duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such record and/or instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such record or 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 or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such proxy or agents shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 14.6.
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(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.
(c) 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 by any trust company,
bank, banker or other depository, wherever situated, showing that at the date
therein mentioned such Person had on deposit with such depository, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security is
produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(d) The fact and date of execution of any such instrument or writing
pursuant to Subsection (c) above, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding the same
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Clause.
(e) The principal amount and serial numbers of Registered Securities
held by any Person and the date of holding the same shall be proved by the
Security Register.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and/or Coupon and the Holder of every Security and/or Coupon 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 and/or Coupon.
(g) Whenever any Act is to be taken hereunder by the Holders of two
or more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of Securities
held by such Holders, the aggregate principal amount of the Securities
denominated in a Foreign Currency (or any currency unit) shall be deemed to be
that amount determined by the Company or by an authorized Exchange Rate Agent
and evidenced to the Trustee by an Officers' Certificate as of the date of the
taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee to be equal to the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on such date (or, in the case
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of a Security denominated in a currency unit for which there is no Market
Exchange Rate, the Dollar equivalent obtained by adding together the results
obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for each such Component Currency on such
date) of the principal amount (or, in the case of an Original Issue Discount
Security, the principal amount thereof that would be due and payable as of the
declaration of acceleration of the Maturity thereof pursuant to Section 6.2) of
such Security. An Exchange Rate Agent may be authorized in advance or from time
to time by the Company. Any such determination by the Company or by any such
Exchange Rate Agent shall be conclusive and binding on all Holders, the Company
and the Trustee, and neither the Company nor any such Exchange Rate Agent shall
be liable therefor in the absence of bad faith.
(h) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; PROVIDED that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office and unless otherwise herein expressly provided,
any such document shall be deemed to be sufficiently made, given,
furnished or filed upon its receipt by a Responsible Trust Officer of
the Trustee, 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 delivered in person, mailed,
first-class postage prepaid, or sent by overnight courier or, until
such time as the Company shall have notified the Trustee in writing
that it shall no longer accept delivery of notice by telecopy or given
by telecopy to the Company addressed to it at the address of its
registered office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company, or at its telecopy
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number from time to time furnished in writing to the Trustee expressly
for purposes of this Indenture, Attention: Secretary.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER
(a) Where this Indenture provides for notice to Holders of any event:
(1) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided or unless otherwise specified in
such Securities) if in writing and mailed, first-class postage
prepaid, delivered in person, or sent by overnight courier, to each
Holder affected by such event, at such Holder's address as it appears
in the Security Register, within the time prescribed for the giving of
such notice, and
(2) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (i) published once in an Authorized Newspaper in New
York City and London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are
listed, and (ii) mailed, first-class postage prepaid, delivered in
person or sent by overnight courier to such Persons whose names were
previously filed with the Trustee, within the time 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 in the manner specified above, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder. 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.
(b) In any case where notice to a Holder of Registered Securities is
given in any manner specified in Subsection (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in Subsection (a) above, neither the
failure to deliver, mail or send such notice, nor any defect in any notice so
mailed or sent, 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. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided in Subsection (a) 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.
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(c) 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 the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties 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 excluded, as the
case may be.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 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 or Coupons, 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.
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS
No director, officer, employee, incorporator or shareholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, this Indenture, or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting
Securities waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
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SECTION 1.13 GOVERNING LAW
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPALS THEREOF.
SECTION 1.14 LEGAL HOLIDAYS
Except as otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security or Coupon shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of such Security or Coupon) 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, as the case may be, PROVIDED 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, to the next
succeeding Business Day at such Place of Payment.
SECTION 1.15 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED
The Trustee shall segregate moneys, funds and accounts held by the
Trustee hereunder in one currency (or currency unit) from any moneys, funds or
accounts in any other currencies (or currency units), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 1.16 PAYMENT TO BE IN PROPER CURRENCY
In the case of any Security denominated in any particular currency or
currency unit (the "Required Currency"), subject to applicable law and except as
otherwise provided herein, therein or in or pursuant to the related Board
Resolution, Medium-Term Debt Securities Certificate or supplemental indenture,
the obligation of the Company to make any payment of principal, premium or
interest thereon shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency or currency unit other than
the Required Currency, except to the extent that such tender or recovery shall
result in the Trustee's timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is made in other than the
Required Currency, the Trustee may take such actions as it considers appropriate
to exchange such other currency or currency unit for the Required Currency. The
costs and risks of any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company, the Company
shall be liable for any shortfall or delinquency in the full amount of the
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of payment
based upon any such tender or recovery which is not in the Required Currency, or
which, when exchanged for the Required Currency by the Trustee, is less than the
full amount of the Required Currency then due and payable.
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SECTION 1.17 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 1.18 CHANGES IN EXHIBITS
At any time and from time to time, the Company may substitute a new
form, or add new forms, of the Exhibits hereto. Such substitution shall be
effective upon receipt by the Trustee of such new form of Exhibit and a Board
Resolution or Officers' Certificate adopting such new form of Exhibit, and
thereafter all references in this Indenture to such Exhibit shall be deemed to
refer to such new form of Exhibit.
SECTION 1.19 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture by the
parties thereto in separate counterparts, each of which when signed shall be
deemed to be an original, but all of them together represent the same agreement.
ARTICLE TWO
ISSUANCE OF SECURITIES
SECTION 2.1 CREATION OF SECURITIES IN AMOUNT UNLIMITED
An unlimited aggregate principal amount of Securities may be issued
pursuant to this Article Two and, in the case of Medium-Term Debt Securities,
pursuant to Article Three. The Securities (including Medium-Term Debt
Securities) may be authenticated and delivered, as authorized by the Board of
Directors, in an unlimited number of series up to an aggregate principal amount
of Securities for such series as from time to time may be authorized by the
Board of Directors. All Securities of each series of this Indenture shall be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time of the
authentication and delivery or Stated Maturity of the Securities of such series.
SECTION 2.2 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF
SECURITIES OTHER THAN MEDIUM-TERM DEBT SECURITIES
At any time and from time to time, Securities of each series created
pursuant to the provisions of this Article Two may be executed by the Company
and delivered to the Trustee and shall be authenticated by the Trustee and
delivered to, or upon the order of, the Company upon receipt by the Trustee of
the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of the Securities of the series, and
specifying:
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(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Article Two (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 4.3, 4.4,
4.5, 10.6 or 12.7 and except for any Securities which, pursuant to
Section 4.2, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal (and premium, if
any) of any of the Securities of the series are payable or the method
of determination thereof;
(4) the rate or rates, or the method of determination thereof,
at which any of the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(5) if an Original Issue Discount Security, the Yield to
Maturity;
(6) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
11.2;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the terms of any sinking fund and the obligation, if any,
of the Company to redeem or purchase Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part;
(9) the terms of the obligation of the Company, if any, to
permit the conversion of the Securities of the series into stock or
other securities of the Company or of any other corporation;
(10) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell stock
or other securities of the Company;
(11) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities
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denominated in Dollars, the denominations in which the Securities of
the series shall be issuable;
(12) if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 6.2;
(13) the application, if any, of Section 5.3, or such other
means of satisfaction and discharge as may be specified for the
Securities and Coupons, if any, for a series;
(14) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.1 or covenants of the Company
set forth in Section 8.4, Article Nine or Article Eleven pertaining to
the Securities of the series;
(15) the forms of the Securities and Coupons, if any, of the
series;
(16) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will be
denominated and/or in which payment of the principal of (and premium,
if any) and interest, if any, on any of the Securities of the series
shall be payable and the Exchange Rate Agent, if any, for such series;
(17) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or a Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit or
units, other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon
which, such election may be made, or the other circumstances under
which any of the Securities are to be so payable, including without
limitation the application of Section 4.10(b) and any deletions to,
modifications of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(18) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series may
be determined with reference to an index based on (i) a currency or
currencies or currency unit or units other than that in which such
Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(19) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or any combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the
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circumstances under which and the place or places where any such
exchanges, if permitted, may be made; and 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 definitive
global form with or without Coupons and, if so, whether beneficial
owners of interests in any such definitive Global Security may
exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which and the place or places where any such exchanges may
occur, if other than in the manner provided in Section 4.4;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a U.S. Person (including definition of such term),
in respect of any tax assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the
terms of any such option);
(21) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary Global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 4.3;
(22) the subordination of the Securities of such series to any
other Indebtedness of the Company, including without limitation, the
Securities of any other series; and
(23) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers' Certificate
certifying as to such action also shall be delivered to the Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental indentures,
such supplemental indenture or indentures, accompanied by a Board Resolution or
Board Resolutions authorizing such supplemental indenture or indentures and
designating the new series to be created and prescribing pursuant to Subsection
(a) above, consistent with the applicable provisions of this Indenture, the
terms and provisions relating to the Securities of the series.
(c) [Reserved.]
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(d) An Opinion of Counsel that all instruments furnished to the Trustee
pursuant to this Article 2 conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to authenticate and
deliver the Securities and to deliver the Coupons, if any, of the series; that
all conditions precedent provided for in this Indenture relating to the
authentication and delivery of the Securities and delivery of the Coupons, if
any, of the series have been complied with; that the Company has corporate power
to execute and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all necessary
corporate action for those purposes; and that the supplemental indenture, if
any, as executed and delivered and the Securities and Coupons, if any, of the
series, when issued, will be the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect, the enforceability of the Company's obligations
also being subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and to such
other exceptions that are customary in the circumstances); that the Securities
and Coupons, if any, of the series, when issued, will be entitled to the
benefits of this Indenture, equally and ratably with all other Securities and
Coupons, if any, of such series theretofore issued and then outstanding
hereunder; and that the amount of Securities then outstanding under this
Indenture, including the Securities of the series, will not exceed the amount at
the time permitted by law or this Indenture.
(e) An Officers' Certificate stating that the Company is not in default
under this Indenture and that the issuance of the Securities and Coupons, if
any, of the series will not result in any breach of any of the terms, conditions
or provisions of, or constitute a default under, the Company's Memorandum of
Association and Articles of Association, or other comparable organizational
documents, as applicable, or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it is bound,
or any order of any court or administrative agency entered in any proceeding to
which the Company is a party or by which it may be bound or to which it may be
subject; and that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Securities and Coupons, if any, of the
series have been complied with.
(f) Such other documents as the Trustee may reasonably require.
ARTICLE THREE
ISSUANCE OF MEDIUM-TERM DEBT SECURITIES
SECTION 3.1 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF MEDIUM-
TERM DEBT SECURITIES
At any time, and from time to time, Securities (sometimes referred to
herein as "Medium-Term Debt Securities") of each series created pursuant to the
provisions of this Article Three may be executed by the Company and delivered to
the Trustee and shall be authenticated by the Trustee and delivered to, or upon
the order of, the Company upon receipt by the Trustee of the following:
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(a) A Board Resolution or Board Resolutions authorizing the execution,
authentication and delivery of Medium-Term Debt Securities up to a specified
aggregate principal amount, in such series and subject to such terms as shall be
established by officers of the Company authorized by such resolutions to
establish such series and terms.
(b) A Medium-Term Debt Securities Certificate requesting the Trustee to
authenticate and deliver Medium-Term Debt Securities of a series as contemplated
by Section 4.2, and specifying the following terms with respect to the Medium-
Term Debt Securities of the particular series, authorized pursuant to the Board
Resolution or Board Resolutions referred to in Subsection (a) above:
(1) the title of the Medium-Term Debt Securities of the series
(which shall distinguish the Medium-Term Debt Securities of the series
from all other Securities);
(2) the date of the Medium-Term Debt Securities of the series;
(3) any limit upon the aggregate principal amount of the Medium-
Term Debt Securities of the series which may be authenticated and
delivered under this Article Three (except for Medium-Term Debt
Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Medium-Term Debt Securities of
the series pursuant to Section 4.3, 4.4, 4.5, 10.6 or 12.7 and except
for any Medium-Term Debt Securities which, pursuant to Section 4.2, are
deemed never to have been authenticated and delivered hereunder);
(4) the date or dates on which the principal (and premium, if
any) of any of the Medium-Term Debt Securities of the series are payable
or the method of determination thereof, which in any event may not be
less than nine months subsequent to the date of the first authentication
of Medium-Term Debt Securities of the series;
(5) the rate or rates, or the method of determination thereof, at
which any of the Medium-Term Debt Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Medium-Term Debt Securities of the series that are Registered Securities
on any Interest Payment Date;
(6) If an Original Issue Discount security, the Yield to
Maturity;
(7) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Medium-Term Debt Securities and
Coupons, if any, of the series shall be payable and the office or agency
for the Medium-Term Debt Securities of the series maintained by the
Company pursuant to Section 11.2;
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(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Medium-Term
Debt Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(9) the terms of any sinking fund and the obligation, if any, of
the Company to redeem or purchase Medium-Term Debt 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 Medium-
Term Debt Securities of the series shall be redeemed or purchased, in
whole or in part;
(10) the terms of the obligation of the Company, if any, to permit
the conversion of the Medium-Term Debt Securities of the series into
shares or other securities of the Company or of any other corporation;
(11) the terms, if any, for the attachment to Medium-Term Debt
Securities of the series of warrants, options or other rights to
purchase or sell shares or other securities of the Company;
(12) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000 if Bearer
Securities, for Medium-Term Debt Securities denominated in Dollars, the
denominations in which the Medium-Term Debt Securities of the series
shall be issuable;
(13) if other than the principal amount thereof, the portion of
the principal amount of any of the Medium-Term Debt Securities of the
series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.2;
(14) the application, if any, of Section 5.3, or such other means
of satisfaction and discharge as may be specified for the Medium-Term
Debt Securities and Coupons, if any, of the series;
(15) any deletions or modifications of or additions to the Events
of Default set forth in Section 6.1 or covenants of the Company set
forth in Section 8.4, Article Nine or Article Eleven pertaining to the
Medium-Term Debt Securities of the series;
(16) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Medium-Term Debt Securities of the
series will be denominated and/or in which payment of the principal of
(and premium, if any) and interest, if any, on any of the Medium-Term
Debt Securities of the series shall be payable and the Exchange Rate
Agent, if any, for such series;
(17) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or Holder thereof, or under some or all other
circumstances, in a currency or
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currencies, or currency unit or units, other than that in which the
Medium-Term Debt Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of the
Medium-Term Debt Securities are to be so payable, including without
limitation the application of Section 4.10(b) and any deletions to,
modification of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(18) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Medium-Term Debt Securities of
the series may be determined with reference to an index based on (i) a
currency or currencies or currency unit or units other than that in
which such Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(19) whether the Medium-Term Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities (with or without
Coupons), or any combination thereof, whether Bearer Securities may be
exchanged for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any Medium-Term Debt Securities of
the series are to be issuable initially in temporary global form and
whether any Medium-Term Debt Securities of the series are to be issuable
in definitive global form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive Global Medium-Term
Debt Security may exchange such interests for Medium-Term Debt
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which and the place or places
where any such exchange may occur, if other than in the manner provided
in Section 4.4;
(20) whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of the
Medium-Term Debt Securities of the series to any Holder who is not a
U.S. Person (including a definition of such term), in respect of any tax
assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Medium-Term Debt
Securities rather than pay additional amounts (and the terms of any such
option);
(21) the Person to whom any interest on any Medium-Term Debt
Security of the series shall be payable, if other than the Person in
whose name that Medium-Term Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest, the manner in which, or the person to whom, any
interest on any Bearer Security of the series
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shall be payable, if otherwise than upon presentation and surrender of
the Coupons appertaining thereto as they severally mature and the extent
to which, or the manner in which, any interest payable on a temporary
Global Medium-Term Debt Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 4.3;
(22) the forms of the Medium-Term Debt Securities and Coupons, if
any, of the series; and
(23) The Subordination of such Medium-Term Debt Securities to any
other indebtedness of the Company, including without limitation, the
Medium-Term Debt Securities of any other series; and
(24) any other terms of any of the Medium-Term Debt Securities of
the series (which terms shall not be inconsistent with the provisions of
this Indenture).
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to Subsection (d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the delivery of
such Medium-Term Debt Securities Certificate to the Trustee shall be deemed to
be a certification by the Company that all matters certified in the most recent
Officers' Certificate delivered to the Trustee pursuant to Subsection (d) below
continue to be true and correct, as if such Officers' Certificate related to the
Medium-Term Debt Securities covered by such Medium-Term Debt Securities
Certificate, on and as of the date of such Medium-Term Debt Securities
Certificate. The delivery of such Medium-Term Debt Securities Certificate also
shall be deemed to be a certification that the Board Resolution or Board
Resolutions referred to in Subsection (a) above are in full force and effect on
and as of the date of such Medium-Term Debt Securities Certificate and that the
terms and form or forms of the Medium-Term Debt Securities and Coupons, if any,
of the series have been established by an officer or officers of the Company
authorized by such Board Resolution or Board Resolutions in accordance with the
provisions thereof and hereof.
(c) If (1) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this Subsection (c)
with respect to the Medium-Term Debt Securities authorized pursuant to the Board
Resolution or Board Resolutions referred to in Subsection (a) above or (2) if
the Medium-Term Debt Securities Certificate referred to in Subsection (b) above
specifies a means of satisfaction and discharge other than the application of
Section 5.3 with respect to the series of Medium-Term Debt Securities to which
such Medium-Term Debt Securities Certificate relates, an Opinion of Counsel that
the Medium-Term Debt Securities have been duly authorized by resolutions of the
Board of Directors of the Company, subject to the establishment of certain terms
of the Medium-Term Debt Securities and Coupons, if any, of the series by
officers of the Company authorized by such resolutions to establish such terms,
that when the terms of the Medium-Term Debt Securities and Coupons, if any, of
the series have been established as provided in such resolutions and in this
Indenture and the Medium-Term Debt Securities and Coupons, if any, of the series
have been executed, authenticated and delivered in accordance with the
provisions of this Indenture, the Medium-
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Term Debt Securities and Coupons, if any, of the series, assuming they do not
violate any applicable law then binding on the Company, will constitute legal,
valid and binding obligations of the Company (subject to applicable bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium or
other laws affecting creditors' rights generally from time to time in effect,
the enforceability of the Company's obligations also being subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and to such other exceptions that are
customary in the circumstances) entitled to the benefits of this Indenture,
equally and ratably with all other Securities and Coupons, if any, of such
series theretofore issued and then outstanding hereunder, and that the amount of
Securities then outstanding under this Indenture, including the Medium-Term Debt
Securities of the series, will not exceed the amount at the time permitted by
law or this Indenture.
(d) If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this Subsection (d) to the Trustee during the
immediately preceding 12-month period, an Officers' Certificate stating that the
Company is not in default under this Indenture, that the issuance of the Medium-
Term Debt Securities and Coupons, if any, of the series will not result in any
breach of any of the terms, conditions or provisions of, or constitute a default
under, the Company's Memorandum of Association or Articles of Association, or
other comparable organizational documents, as applicable, or any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is
a party or by which it is bound, or any order of any court or administrative
agency entered in any proceeding to which the Company is a party or by which it
may be bound or to which it may be subject, that all laws and requirements with
respect to the execution and delivery by the Company of the Medium-Term Debt
Securities and Coupons, if any, of the series have been complied with and that
all conditions precedent provided in this Indenture relating to the
authentication and delivery of the Medium-Term Debt Securities and Coupons, if
any, of the series have been complied with.
(e) Such other documents as the Trustee shall reasonably request.
SECTION 3.2 FORM OF MEDIUM-TERM DEBT SECURITIES
The Medium-Term Debt Securities and Coupons, if any, of each series
shall be in such forms as shall be specified as contemplated by Section 3.1.
ARTICLE FOUR
THE SECURITIES
SECTION 4.1 FORM AND DENOMINATION
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 in Section 2.2 or
Section 3.1, as the case may be, and (subject to Section 4.2) set forth in the
Officers' Certificate or Medium-Term Debt Securities Certificate
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referred to in Section 2.2 or Section 3.1, as the case may be, or in any
indenture supplemental hereto.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 2.2 or Section 3.1, as the case
may be. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $l,000 and in any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee. Each Security shall bear the
appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 4.2 EXECUTION, DELIVERY, DATING AND AUTHENTICATION
The Securities shall be executed on behalf of the Company by a manual
or facsimile signature of its Chairman, its President, any of its Vice
Presidents, its Treasurer, any Assistant Treasurer, its Secretary, any Assistant
Secretary or any person acting in a similar capacity, under its corporate seal
reproduced thereon. Any Coupons shall be executed on behalf of the Company by
the manual or facsimile signature of any such officer of the Company. In case
any of the above referenced officers of the Company who shall have signed any of
the Securities or Coupons shall cease to be such officer before the Securities
so signed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities and/or
Coupons had not ceased to be such officer; and any Securities or Coupons may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security or Coupon, shall be such officers of the Company,
although at the date of the execution of this Indenture any such person was not
such officer.
At any time and from time to time, the Company may deliver Securities
of any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of any
Medium-Term Debt Securities) with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order (or, in the case of Medium-Term Debt Securities of any series, upon
receipt of a Medium-Term Debt Securities Certificate and in accordance with the
terms thereof) shall authenticate and make available for delivery such
Securities; PROVIDED, HOWEVER, that, unless otherwise specified in the Board
Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt
Securities in the Medium-Term Debt Securities Certificate) with respect to an
Bearer Securities, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 4.3 which is
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not in global form) shall be mailed or otherwise delivered to any location in
the United States; and PROVIDED FURTHER that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-Term
Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to
such Bearer Securities, such Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security (including any temporary Bearer Security issued pursuant to Section 4.3
which is not in global form) shall have furnished to the Company or any agent,
underwriter or selling group member a certificate substantially 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. In connection with the original issuance of any Bearer Security and
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt
Securities Certificate) with respect to such Bearer Securities, a confirmation
substantially in the form set forth in Exhibit B.5 to this Indenture shall be
sent to each purchaser thereof. If any Security shall be represented by a
definitive Global Bearer Security, then, for purposes of this Section and
Section 4.3, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such definitive Global Bearer Security.
Except as permitted by Section 4.5, the Trustee shall not authenticate and make
available for delivery any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any
series 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, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 3.1(b)(2), each
Registered Security shall be dated the date of its authentication, and each
Bearer Security and any 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 or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
below executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 4.8
together with a written statement (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
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The Trustee's certificate of authentication shall be in substantially
the following form:
Dated:
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
_____________________, as Trustee
By:______________________________
Authorized Signatory
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SECTION 4.3 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order (or, in the case of Medium-Term Debt
Securities, receipt of the Medium-Term Debt Securities Certificate with respect
to such Medium-Term Debt Securities) the Trustee shall authenticate and make
available for delivery, 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 conclusively by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall be
exchanged in accordance with the provisions of the following subsections), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 11.2 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured Coupons) the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like aggregate principal amount of definitive Securities
of the same series and of like tenor or authorized denominations; PROVIDED,
HOWEVER, that, unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; 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 4.2.
If temporary Bearer Securities of any series are issued in global
form, such temporary Global Bearer Securities shall, unless otherwise specified
as contemplated by Section 2.2 or Section 3.1, as the case may be, be delivered
to the London office of the Depositary, for the benefit of Euroclear and CEDEL
Bank, societe anonyme ("CEDEL"), for credit to the respective accounts of the
beneficial owners of interests in such Securities (or to such other accounts as
they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole
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or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such temporary Global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary Global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary Global
Security shall be in bearer form, registered form, definitive Global form or any
combination thereof, as specified as contemplated by Section 2.2 or Section 3.1,
as the case may be, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, upon such presentation by the Depositary, such temporary Global Security
shall be accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary Global Security held for its account then to be exchanged, each in the
form set forth in Exhibit B.2 to this Indenture; PROVIDED FURTHER that
definitive Bearer Securities (including a definitive Global Bearer Security)
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 4.2.
Unless otherwise specified as contemplated by Section 2.2 or Section
3.1, as the case may be, the interest of a beneficial owner of Securities of a
series in a temporary Global Bearer Security shall be exchanged for definitive
Bearer Securities of the same series and of like tenor following the Exchange
Date when the beneficial owner instructs Euroclear or CEDEL, as the case may be,
to request such exchange on his behalf and delivers to Euroclear or CEDEL, as
the case may be, a certificate substantially 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,
CEDEL, the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, any such exchange shall be made free of charge to the beneficial owners
of such temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. The definitive Bearer
Securities to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as provided above, 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 2.2 or Section 3.1, as the case may be, interest
payable on a temporary Global Bearer Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and CEDEL on such Interest Payment Date upon delivery by
Euroclear and CEDEL to the Trustee of a certificate or certificates
substantially 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 Global Security (or to such other
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accounts as they may direct) on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate substantially
in the form set forth in Exhibit B.4 to this Indenture. Any interest so received
by Euroclear and CEDEL 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
11.3.
SECTION 4.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 11.2 a register (being the
combined register of the Security Registrar and all additional transfer agents
designated pursuant to Section 11.2 for the purpose of registration of transfer
of Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Trustee is hereby
appointed the initial Security Registrar, with the Security Register initially
to be kept at __________________________ at all reasonable times each register
maintained by the Security Registrar and any additional transfer agents shall be
open for inspection by the Trustee.
Subject to Section 4.11, upon surrender for registration of transfer
of any Registered Security of any series at the office or agency of the Company
maintained pursuant to Section 11.2 for such purpose in a Place of Payment for
such series, 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 a like aggregate principal amount and 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 a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange. the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
Bearer Securities may not be issued in exchange for Registered Securities.
Subject to Section 4.11, at the option of the Holder and unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, 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 appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee
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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 11.2, 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 (1) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (2) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, 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 make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, any definitive
Global Bearer Security shall be exchangeable only as provided in this
Subsection. If the beneficial owners of interests in a definitive Global Bearer
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 2.2 or Section 3.1, as the
case may be, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in an aggregate principal amount
equal to the principal amount of such definitive Global Bearer Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such definitive Global Bearer Security shall be surrendered
by the Depositary or such other depositary or Depositary) as shall be specified
in the Company Order or Medium-Term Debt Securities Certificate, as the case may
be, with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, in exchange for each portion of such definitive Global Bearer
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
definitive Global Bearer Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, 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
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business 15 Business Days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; PROVIDED FURTHER that no
Bearer Security delivered in exchange for a portion of a definitive Global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
definitive Global Bearer Security after the close of business at the office or
agency where such exchange occurs on (1) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (2) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such definitive Global Bearer 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.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 4.3, Section 10.6 or Section 12.7 not involving
any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 Business 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 day of mailing of the relevant
notice of redemption, or (2) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (3) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
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SECTION 4.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security or Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and make available for delivery 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,
PROVIDED that if such new Security is a Bearer Security, such Security shall be
delivered only outside the United States.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon and (2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, 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 (upon surrender to the Trustee of
such Security with all appurtenant Coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
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 or Coupon, pay such Security
or Coupon; PROVIDED, HOWEVER, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
11.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 2.2 or Section 3.1,
as the case may be, 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 or Coupon under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
Coupons of that series duly issued hereunder.
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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 4.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Unless otherwise provided as contemplated by Section 2.2 or Section
3.1, as the case may be, 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. At the option of
the Company, interest on the Registered Securities of any series that bears
interest may be paid by mailing a check to the address of any Holder as such
address shall appear in the Security Register.
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 Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each 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 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 Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
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Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after 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.
If any installment of interest the Stated Maturity of which is on or
prior to the Redemption Date for any Security called for redemption pursuant to
Article Twelve is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section and Section 4.4,
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 4.7 PERSONS DEEMED OWNERS
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 4.4, 4.6 and 4.11
and unless otherwise specified as contemplated by Section 2.2 or Section 3.1, as
the case may be) interest on such Security and for all other purposes
whatsoever, whether or not such Security is 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 shall pass by delivery.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any Coupon as the absolute
owner of such Security or Coupon for the purpose of receiving payment thereof or
on account thereof (unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be) 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 4.8 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. All Securities and Coupons so delivered shall be promptly
canceled by the Trustee. All Bearer Securities and unmatured Coupons held by the
Trustee pending such cancellation shall be deemed to be delivered for
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cancellation for all purposes of this Indenture and the Securities. 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 to the Trustee shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities and Coupons held by the Trustee shall
be disposed of in a manner selected by the Trustee unless otherwise directed by
a Company Order; PROVIDED, HOWEVER, that the Trustee may, but shall not be
required to, destroy such canceled Securities and Coupons.
SECTION 4.9 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, 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 4.10 CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES
The provisions of this Section shall apply to the Securities of any
series unless otherwise provided as contemplated by Section 2.2 or Section 3.1,
as the case may be.
(a) The following payment provisions shall apply to any Registered
Security of any series denominated in a Foreign Currency or any currency unit,
including without limitation, the ECU, except as provided in Subsection (b)
below:
(1) Except as provided in Subsection (a)(2) or in Subsection
(e) below, payment of principal of and premium, if any, on such
Registered Security will be made at the Place of Payment by delivery
of a check in the currency or currency unit in which the Security is
denominated on the payment date against surrender of such Registered
Security, and any interest on any Registered Security will be paid at
the Place of Payment by mailing a check in the currency or currency
unit in which such interest is payable (which shall be the same as
that in which the Security is denominated unless otherwise provided)
to the Person entitled thereto at the address of such Person appearing
on the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series denominated
in any currency unit, including without limitation, the ECU, if the following
provisions (or any substitute therefor, or addition thereto, not inconsistent
with this Indenture) are established pursuant to Section 2.2 or Section 3.1, as
the case may be, and if the Company has not, before
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the delivery of the election referred to in Clause (1) below, deposited funds or
securities in compliance with Section 5.1 or Subsection (a)(1) or (if specified
pursuant to Section 2.2 or Section 3.1, as the case may be) Subsection (a)(2) of
Section 5.3, the following payment provisions shall apply to any payment to be
made prior to the giving of any notice to Holders of any election to redeem
pursuant to Section 12.4, except as otherwise provided in Subsections (e) and
(f) below:
(1) A Holder of Securities of a series shall have the option to
elect to receive payments of principal of, premium, if any, and
interest, if any, on such Securities in a currency or currency unit
(including Dollars), other than that in which the Security is
denominated, such election, as designated in the certificates for such
Securities (or as provided by Section 2.2 or Section 3.1, as the case
may be, or a supplemental indenture hereto with respect to
uncertificated securities), shall be made by delivering to the Paying
Agent a written election, to be in form and substance satisfactory to
the Paying Agent, not later than the close of business in New York, New
York, on the day 15 days prior to the applicable payment date. Such
election will remain in effect for such Holder until changed by the
Holder by written notice to the Paying Agent (but any such written
notice must be received by the Paying Agent not later than the close of
business on the day 15 days prior to the next payment date to be
effective for the payment to be made on such payment date and no such
change may be made with respect to payments to be made on any Security
of such series with respect to which notice of redemption has been
given by the Company pursuant to Article Twelve). Any Holder of any
such Security who shall not have delivered any such election to the
Paying Agent in accordance with this Subsection (b) will be paid the
amount due on the applicable payment date in the relevant currency unit
as provided in Subsection (a) of this Section. Payment of principal of
and premium, if any, shall be made on the payment date therefor against
surrender of such Security. Payment of principal, premium, if any, and
interest, if any, shall be made at the Place of Payment by mailing at
such location a check, in the applicable currency or currency unit, to
the Holder entitled thereto at the address of such Holder appearing on
the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, and interest, if
any, on any Bearer Security will be made, except as provided in Section 4.3 with
respect to temporary Global Securities, unless otherwise specified pursuant to
Section 2.2 or Section 3.1, as the case may be, and/or Section 10.1(8), at such
place or places outside the United States as may be designated by the Company
pursuant to any applicable laws or regulations by any appropriate method in the
currency or currencies or currency unit or units in which the Security is
payable (except as provided in Subsection (e) below) on the payment date
therefor against surrender of the Bearer Security, in the case of payment of
principal and premium, if any, or the relevant Coupon, in the
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case of payment of interest, if any, to a Paying Agent designated for such
series pursuant to Section 11.2.
(d) Not later than ten Business Days (with respect to any Place of
Payment) prior to each payment date, the Paying Agent shall deliver to the
Company a copy of its record of the respective aggregate amounts of principal
of, premium, if any, and interest, if any, on the Securities to be made on such
payment date, in the currency or currency unit in which each of the Securities
is payable, specifying the amounts so payable in respect of Registered
Securities and Bearer Securities and in respect of the Registered Securities as
to which the Holders of Securities denominated in any currency unit shall have
elected to be paid in another currency or currency unit as provided in
Subsection (b) above. If the election referred to in Subsection (b) above has
been provided for pursuant to Section 2.2 or Section 3.1, as the case may be,
and if at least one Holder has made such election, then, not later than the
fifth Business Day (with respect to any Place of Payment) prior to the
applicable payment date the Company will deliver to the Trustee an Exchange Rate
Officers' Certificate in respect of the Dollar or Foreign Currency or currency
unit payments to be made on such payment date. The Dollar or Foreign Currency or
currency unit amount receivable by Holders of Registered Securities denominated
in a currency unit who have elected payment in another currency or currency unit
as provided in Subsection (b) above shall be determined by the Company on the
basis of the applicable Official Currency Unit Exchange Rate set forth in the
applicable Exchange Rate Officers' Certificate.
(e) If a Foreign Currency in which any Security is denominated or
payable ceases to be recognized both by the government of the country which
issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if ECU ceases
to be used within the European Monetary System, or if any other currency unit in
which a Security is denominated or payable ceases to be used for the purposes
for which it was established, in each case as determined in good faith by the
Company, then with respect to each date for the payment of principal of,
premium, if any, and interest, if any, on the applicable Security denominated or
payable in such Foreign Currency, ECU or such other currency unit occurring
after the last date on which such Foreign Currency, ECU or such other currency
unit was so used (the "Conversion Date"), the Dollar shall become the currency
of payment for use on each such payment date (but ECU or the Foreign Currency or
the currency unit previously the currency of payment shall, at the Company's
election, resume being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which gave rise to
the Dollar becoming such currency no longer prevail, in each case as determined
in good faith by the Company). The Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holder of such
Security with respect to such payment date shall be the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the currency unit, as determined by the Exchange Rate Agent (which shall be
delivered in writing to the Trustee not later than the fifth Business Day prior
to the applicable payment date) as of the Conversion Date or, if later, the date
most recently preceding the payment date in question on which such determination
is possible of performance, but not more than 15 days before such payment date
(such Conversion Date or date preceding a payment date as aforesaid being called
the "Valuation Date") in the manner provided in Subsection (g) or (h) below.
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(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as provided
for by Subsection (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, or if ECU ceases to be used within the European Monetary System, or
if another currency unit ceases to be used for the purposes for which it is
established, in each case as determined in good faith by the Company, such
Holder shall (subject to Subsection (e) above) receive payment in the currency
unit in which the Security is denominated. Each payment covered by an election
pursuant to Subsection (b) above shall be governed by the provisions of this
Subsection (f) (but, subject to any contravening valid election pursuant to
Subsection (b) above, the specified Foreign Currency or ECU or other currency
unit shall, at the Company's election, resume being the currency or currency
unit, as applicable, of payment with respect to Holders who have so elected, but
only with respect to payments on payment dates preceded by 15 Business Days
during which the circumstances which gave rise to such currency unit becoming
the currency unit of payment, no longer prevail, in each case as determined in
good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent as of each Valuation Date and shall be
obtained by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate on
the Valuation Date for such Component Currency.
(i) For purposes of this Section 4.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including without limitation, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units (including decimals) which such Component Currency represented in the
relevant currency unit, on the Conversion Date or, if ECU and such currency unit
is being used for settlement of transactions by public institutions of or within
the European Communities or was so used after the Conversion Date, the Valuation
Date or the last date the currency unit was so used, whichever is later. If
after such date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after such date two or
more Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be replaced by
an amount in such single currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and such single
currency shall thereafter be a Component Currency. If after such date any
Component Currency
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shall be divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date, for any currency or
currency unit the noon Dollar buying rate for that currency or currency unit, as
the case may be, for cable transfers quoted in New York City on such date as
certified for customs purposes by the Federal Reserve Bank of New York or such
other rate as may be established pursuant to Section 2.2 or Section 3.1, as the
case may be. If such rates are not available for any reason with respect to one
or more currencies or currency units for which an Exchange Rate is required, the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency or currency unit in question, or
such other quotations as the Exchange Rate Agent shall deem appropriate. Unless
otherwise specified by the Exchange Rate Agent, if there is more than one market
for dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would, as determined in its sole
discretion and without liability on the part of the Exchange Rate Agent,
purchase such currency or currency unit in order to make payments in respect of
such securities.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit and the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company and all Holders of the Securities and
Coupons denominated or payable in the relevant currency or currency units. In
the event that a Foreign Currency ceases to be used both by the government of
the country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.6 to the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used within the European Monetary System, or any
other currency unit in which Securities or Coupons are denominated or payable,
ceases to be used for the purposes for which it was established, the Company,
after learning thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner provided in
Section 1.6 to the Holders) specifying the Conversion Date. Any actions taken
pursuant to the parentheticals at the end of the first sentence of Section
4.10(e) and at the end of Section 4.10(f) shall be promptly set forth in like
notices from the Company to the Trustee and then from the Trustee to the Holders
(which notice may be mailed with payment to the Holders).
Subject to the provisions of Sections 7.1 and 7.3, the Trustee shall
be fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent, and shall not otherwise have
any duty or obligation to determine such information independently.
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SECTION 4.11 SECURITIES IN GLOBAL FORM
(a) If Securities of a series are issuable in global form, as
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
then, notwithstanding Subsection (a)(8) of Section 2.2 or Subsection (b)(9) of
Section 3.1, as the case may be, and the provisions of Section 4.1, such
Security shall represent such of the Outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Global
Security 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 (or, in the case of Medium-Term Debt
Securities, the Medium-Term Debt Securities Certificate) to be delivered to the
Trustee pursuant to Section 4.2 or Section 4.3. Subject to the provisions of
Section 4.2 and, if applicable, Section 4.3, the Trustee shall deliver and
redeliver any Security in definitive global bearer form in the manner and upon
written instructions given by the Person or Persons specified therein or in the
applicable Company Order (or, in the case of Medium-Term Debt Securities, the
Medium-Term Debt Securities Certificate). If a Company Order (or, in the case of
Medium-Term Debt Securities, Medium-Term Debt Securities Certificate) pursuant
to Section 4.2 or 4.3 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement of 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.
(b) Any Global Security shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositary's instruction and shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary."
(c) Notwithstanding any other provisions of this Section 4.11 or of
Section 4.4 and subject to the provisions of Subsection (d) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 4.4,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(d) (1) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the
Securities for such series ceases to be a clearing agency registered
under the Exchange Act or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global
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Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee or its agent, upon receipt
of a company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like
tenor and terms in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global
Security.
(2) The Company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of a Company
Request for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global Security
or Securities representing such series or portion thereof in exchange
for such Global Security or Securities.
(3) If specified by the Company pursuant to Sections 2.2 and
3.1 with respect to Securities issued or issuable in the
form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in
whole or part for individual Securities of such series of
like tenor and terms in definitive form on such terms as
are acceptable to the Company and such Depositary.
Thereupon the Company shall execute, and the Trustee or its
agent shall authenticate and deliver, without service
charge, (i) to each Person specified by such Depositary a
new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested
by such Person in aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the
Global Security; and (ii) to such Depositary a new Global
Security of like tenor and terms and in an authorized
denomination equal to the difference. If any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to the
Holders thereof.
(4) In any exchange provided for in any of the preceding three
Clauses, the Company will execute and the Trustee or its
agent will authenticate and deliver individual Securities
in definitive registered form in authorized denominations.
Upon the exchange of the entire principal amount of a
Global Security for individual Securities, such Global
Security shall be cancelled by Trustee or its agent. Except
as provided in the preceding Clause, Securities issued in
exchange for a Global Security pursuant to this Section
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shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or
the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in
whose names such Securities are so registered.
(e) The provisions of the last sentence of the fifth paragraph of
Section 4.2 shall apply to any Security represented by a Global Security if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Global Security 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 the fifth paragraph of Section 4.2.
(f) Notwithstanding the provisions of Section 4.6, unless otherwise
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
payment of principal of and any premium and any interest on any Global Security
shall be made to the Person or Persons specified therein.
(g) Notwithstanding the provisions of Section 4.7 and except as
provided in the preceding Subsection, the Company, and any agent of the Company
may, and the Trustee and any agent of the Trustee, at the direction of the
Company, may treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a definitive Global Security as shall be
specified in a written statement of the Holder of such definitive Global
Security or, in the case of a definitive Global Security in bearer form, of
Euroclear or CEDEL which is produced to the Trustee by such Person; PROVIDED,
HOWEVER, that none of the Company, the Trustee, the Security Registrar or any
Paying Agent shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 4.12 CUSIP, ISIN AND COMMON CODE NUMBERS
The Company in issuing the Securities may use a "CUSIP," "ISIN" or
"Common Code" number, and if so, the Trustee shall use the CUSIP, ISIN and
Common Code number in notices of redemption or exchange as a convenience to
Holders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN and
Common Code number printed in the notice or on the Securities, and the reliance
may be placed only on the other identification numbers printed on the
Securities. The Company shall promptly notify the trustee of any change in any
CUSIP, ISIN or Common Code number.
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ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 SATISFACTION AND DISCHARGE OF INDENTURE IN RESPECT OF
ANY SERIES OF SECURITIES
This Indenture shall upon Company Request cease to be of further
effect with respect to a series of Securities (except as to any surviving rights
of (as applicable) registration of transfer or exchange of Securities and
Coupons, if any, of such series herein expressly provided for), and the Trustee,
at the request and expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when
(1) either
(i) all Securities and Coupons, if any, of such series
theretofore authenticated and delivered (other than (A) Securities and
Coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 4.5 and (B)
Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 11.3) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year, or
(C) 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 (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currency unit in which such Securities
and Coupons of such series are payable sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all taxes or other
charges and assessments in respect thereof payable by the Trustee to pay
and discharge the entire indebtedness on such Securities and Coupons of
such series not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
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date of such deposit (in the case of Securities and Coupons of such series
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 with respect to such series of Securities; 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 the
Securities of the series under this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series, the obligations of the Company in Sections 4.4, 4.5, 5.2,
5.4, 7.7 and 11.2, the Company's rights of optional redemption, if any, the
obligations of the Trustee to any Authenticating Agent under Section 7.15 and,
if money shall have been deposited with the Trustee pursuant to Subsection
(1)(B) of this Section 5.1, the obligations of the Trustee under Section 5.2 and
the last paragraph of Section 11.3 shall survive.
SECTION 5.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 11.3, all
money deposited with the Trustee pursuant to Sections 5.1 and 5.3 (and all money
received as payment in connection with U.S. Government Obligations and Foreign
Government Securities deposited pursuant to Section 5.3) shall be held in trust
and applied by it, in accordance with the provisions of the Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee.
SECTION 5.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF
ANY SERIES
(a) If this Section is specified, as contemplated by Section 2.2 or
Section 3.1, as the case may be, to be applicable to Securities and Coupons, if
any, of any series, at the Company's option, either
(1) the Company will be deemed to have been Discharged (as
defined below) from its obligations with respect to Securities and
Coupons, if any, of such series or
(2) the Company will cease to be under any obligation with
respect to such series to comply with any term, provision or condition
set forth in (i) Sections 9.1 and 9.2 or (ii) the instrument or
instruments setting forth the terms, provisions or conditions of such
series pursuant to Section 2.2 or Section 3.1, as the case may be
(PROVIDED, in the case of this Clause (ii), that such instrument or
instruments specify which terms, provisions or conditions, if any, are
subject to
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this Subsection (a)(2) and that no such instrument may specify that
the Company may cease to comply with any obligations as to which it
may not be Discharged pursuant to the definition of "Discharged").
(b) A Discharge pursuant to Subsection (a)(1) above shall be
effective with respect to the Securities and Coupons, if any, of such series
after the applicable conditions set forth below in (1) and either Clause (2) or
Clause (3) have been satisfied, and the Company's release from its obligations
to comply with certain obligations with respect to such series pursuant to
Subsection (a)(2) above shall be effective with respect to the Securities and
Coupons, if any, of such series on the first day after the applicable conditions
set forth below in Clause (1) and either Clause (2) or Clause (3) have been
satisfied:
(1) the Company has:
(i) paid or caused to be paid all other sums payable with
respect to the Outstanding Securities and Coupons, if any,
of such series (in addition to any required under Subsection
(b)(2) or (b)(3)); and
(ii) 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 the entire indebtedness on all Outstanding
Securities and Coupons, if any, of any such series have been
complied with;
(2) (i) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as a trust fund specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities and Coupons, if any, of such series (A) money in an amount (in
such currency, currencies or currency unit or units in which any
Outstanding Securities and Coupons, if any, of such series are payable) or
(B) in the case of Securities and Coupons, if any, denominated in Dollars,
U.S. Government Obligations or, in the case of Securities and Coupons, if
any, denominated in a Foreign Currency, Foreign Government Securities,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal (including any premium) and interest,
if any, under the Securities and Coupons, if any, of such series, money in
an amount or (C) a combination of Clauses (A) and (B), which in any case of
Clauses (A), (B) and (C) is sufficient (in the opinion with respect to
Clauses (B) and (C) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) to pay and discharge each installment of principal of (including
premium, if any, on), and interest, if any, on, the Outstanding Securities
and Coupons, if any, of such series on the dates such installments of
interest or principal are due (either at maturity, upon redemption or
otherwise, as the case may be) in the currency, currencies or currency unit
or units, in which such Securities and Coupons, if any, are payable;
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(ii) (A) no Event of Default or event (including such
deposit) which with notice or lapse of time would become an
Event of Default shall have occurred and be continuing on
the date of such deposit and after giving effect to such
deposit, (B) no Event of Default as defined in Clause (5) or
Clause (6) of Section 6.1, or event which with notice or
lapse of time or both would become an Event of Default under
either such clause, shall have occurred within 90 days after
the date of such deposit, and (C) such deposit and the
related intended consequence under Subsection (a)(1) or
Subsection (a)(2) above will not result in any default or
event of default under any material indenture, agreement or
other instrument binding upon the Company or any Subsidiary;
(iii) (A) in the event of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from 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 of Counsel shall confirm
that, the Holders of 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;
(B) in the event of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not
occurred; and
(3) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
2.2 or Section 3.1, as the case may be, to be applicable to the
Securities and Coupons, if any, of such series.
(c) Any deposits with the Trustee referred to in Subsection (b)(2)(i)
above will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. If any Outstanding Securities and
Coupons, if any, of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement will provide therefor and the Company will make arrangements for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
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SECTION 5.4 REINSTATEMENT
If the Trustee is unable to apply any money, U.S. Government
Obligations or Foreign Government Securities in accordance with Section 5.1 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities and Coupons, if any, of such series shall bc revived and reinstated
as though no deposit had occurred pursuant to Section 5.1 until such time as the
Trustee is permitted to apply all such money, U.S. Government Obligations or
Foreign Government Securities in accordance with this Article Five; PROVIDED,
HOWEVER, that if the Company has made any payment of interest on or principal of
(and premium, if any) on any Securities and Coupons, if any, of such series
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such series of Securities and Coupons, if any,
to receive such payment from the money, U.S. Government Obligations or Foreign
Government Securities held by the Trustee.
SECTION 5.5 DEFINITIONS
The following terms, as used in this Article, shall have the following
meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and Coupons, if any, of the series as to which this Section is
specified as applicable as aforesaid and to have satisfied all the obligations
under this Indenture relating to the Securities and Coupons, if any, of such
series (and the Trustee, at the request and expense of the Company, will execute
proper instruments acknowledging the same), except (1) the rights of Holders
thereof to receive, from the trust fund described in Section 5.3(b)(2)(i),
payment of the principal of (and premium, if any) and the interest, if any, on
such Securities and Coupons, if any, when such payments are due, (2) the
Company's obligations with respect to such Securities and Coupons, if any, under
Sections 4.4 and 4.5 (insofar as applicable to Securities of such series), 5.2,
5.4, 11.2 and 11.3 (last paragraph only) the Company rights of optional
redemption, if any, and the Company's obligations to the Trustee under Section
7.7, (3) the rights of Holders of Securities of any series with respect to the
currency or currency units in which they are to receive payments of principal,
premium, if any, and interest, if any, and (4) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, will survive such discharge. The
Company will reimburse the trust fund for any loss suffered by it as a result of
any tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or Foreign Government Securities, as the case may be, or
any principal or interest paid on such obligations, and, subject to the
provisions of Section 7.7, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect to Securities and
Coupons, if any, of any series that are denominated in a Foreign Currency,
securities that are (1) direct obligations of the government that issued or
caused to be issued such currency for the payment of which obligations its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of such government the
timely
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payment of which is unconditionally guaranteed as a full faith and credit
obligation by such government, which, in either case under Clause (1) or Clause
(2), are not callable or redeemable at the option of the issuer thereof.
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case under Clause (1) or Clause (2), are not callable or redeemable at the
option of the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE SIX
REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
"Event of Default" with respect to any series of Securities means each
one of the events specified below in this Section 6.1, unless it is either
inapplicable to a particular series or is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Medium-Term Debt
Securities Certificate establishing such series of Securities:
(1) default in the payment of any installment of interest upon
any of the Securities of such series, as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or premium, if
any, on any of the Securities of such series, as and when the same
shall become due and payable (subject to Clause (3) below) either at
maturity, upon redemption, by declaration or otherwise; or
(3) default in the making of any payment for a sinking, purchase
or analogous fund provided for in respect of such series of
Securities, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(4) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in respect of the Securities of such series, or in this
Indenture contained with respect to such series,
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for a period of 90 days after the date on which written notice of such
failure requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Securities of such series at the time
Outstanding; or
(5) entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case under any applicable Federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(6) commencement by the Company of a voluntary case under any
applicable Federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent by the Company to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or for any substantial part of its property, or any
general assignment by the Company for the benefit of creditors, or
failure by the Company generally to pay its debts as they become due,
or the taking by the Company of any corporate action in furtherance of
any of the foregoing; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.2 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 each and every such case,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series (except in the case of an
Event of Default specified in Clause (5) or Clause (6) of Section 6.1) may
declare the principal amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series,
together with accrued interest thereon, if any, 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), together with accrued interest thereon, if any, shall become
immediately due and payable. If an Event of Default specified in Clause (5) or
Clause (6) of Section 6.1 occurs, such principle amount shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
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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
(i) all overdue interest on all Securities of that series,
(ii) 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 interest thereon at the rate
or rates prescribed therefor in such Securities without
duplication of any amount thereof paid or deposited pursuant to
Clause (i) above or Clause (iii) below,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities without duplication of any
amount thereof paid or deposited pursuant to Clause (i) above or
Clause (ii) above, and
(iv) in Dollars, 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 nonpayment 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 6.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE
The Company covenants that if:
(1) default shall be made in the payment of any installment of
interest on any Security or Coupon as and when the same shall become
due and payable, and such default shall have continued for the period
of grace provided for with respect to such Security or Coupon, as the
case may be,
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(2) default shall be made in the payment of the principal of or
premium, if any, on any Security as and when the same shall have
become due and payable (subject to Clause (3) below), whether at
maturity of the Security or upon redemption or by declaration or
otherwise, and such default shall have continued for any period of
grace provided for with respect to such Security, or
(3) default shall be made in the payment for any sinking,
purchase or analogous fund provided for in respect of any Security as
and when the same shall become due and payable, and such default shall
have continued for any period of grace provided for with respect to
such Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and Coupons, if any, the whole amount then due and
payable on such Securities and Coupons, if any, for principal (and premium, if
any) and interest, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue installments of interest, if any, at the rate or rates
prescribed therefor in such Securities and Coupons, if any, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and Coupons, if
any, and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and Coupons, if any, wherever situated.
If an Event of Default with respect to Securities and Coupons, if any,
of any series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities and/or Coupons of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
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(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial procee ding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due 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 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
and/or Coupons 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; PROVIDED
that the Trustee may, on the behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official, or be a member of a creditors' or
similar committee.
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES
All rights of action and claims under this Indenture or the Securities
and Coupons, if any, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons, if any, or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and Coupons, if any, in respect of which such judgment has been
recovered.
SECTION 6.6 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 premium,
if any) or interest, upon presentation of the Securities and Coupons, if any,
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 7.7;
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SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
Coupons, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities
and/or Coupons for principal (and premium, if any) and interest, if
any, respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 6.7 LIMITATION ON SUITS
No Holder of Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series or, in the case of an Event of
Default specified in Clause (5) or Clause (6) of Section 6.1, of all
series (voting as a class) with respect to which such Event of Default
has occurred and is continuing, 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 or, in the case of an Event of Default specified in Clause (5)
or Clause (6) of Section 6.1, of all series (voting as a class) with
respect to which such Event of Default has occurred and is continuing;
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 (including without limitation the provisions of Section 6.12)
to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
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SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST
Notwithstanding any other provision in this Indenture, the Holder of
any Security or any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 4.6) interest, if any, on such Security or Coupon on the
Stated Maturity or Maturities expressed in such Security (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 6.9 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 and
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 6.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and/or Coupons, if
any, in the last paragraph of Section 4.5, 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 6.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Securities
and/or Coupons 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. Subject to the provisions of
Section 6.7, 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 6.12 CONTROL BY HOLDERS
The Holders of not less than 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
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(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 7.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Trust Officer or Officers of the
Trustee, determine that the action so directed would involve the
Trustee in personal liability.
SECTION 6.13 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 premium, if any) or
interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund or analogous obligation with respect to
the Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect
to such series, and any Event of Default with respect to such series 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 6.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of a Security
and/or Coupon by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on any Security or the
payment of interest on any Coupon on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
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SECTION 6.15 WAIVER OF USURY, STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) or Subsection (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Trust Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
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(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, given pursuant to Section 6.12,
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.2 NOTICE OF DEFAULTS
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit to the
Holders of Securities of such series notice as provided in Section 1.6 of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any, on) or interest on any Security
of such series or in the payment of any sinking fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible Trust
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; PROVIDED
FURTHER that in the case of any default of the character specified in Section
6.1(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 90 days after the occurrence of such default. 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 7.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 7.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
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(2) 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;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) 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 and
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiries 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;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or counsel, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or counsel
appointed with due care (and, in the case of any agent, with the prior
written consent of the Company; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 7.4 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 assumes no
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responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 7.5 MAY HOLD SECURITIES.
The Trustee, 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 or warrants to purchase Securities and, subject
to Sections 7.8 and 7.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
SECTION 7.6 MONEY HELD IN TRUST.
Except as provided in Section 1.15, money held by the Trustee or any
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required by law. The Trustee or any Paying Agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 7.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time in Dollars 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 in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it
harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based upon, or measured or
determined by, the income of the Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of 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.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or
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collected by the Trustee as such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.1(5) and Section 6.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal, state or foreign bankruptcy,
insolvency or other similar law. The provisions of this Section shall survive
the termination of this Indenture.
SECTION 7.8 DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting interest or
resign with respect to the Securities of that series in the manner and with the
effect provided by, and subject to the provisions of, Section 310(b) of the
Trust Indenture Act and this Indenture.
In the event that the Trustee shall fail to comply with the provisions
of the preceding sentence with respect to the Securities of any series, the
Trustee shall, within 10 days after the expiration of such 90-day period,
transmit, in the manner and to the extent provided in Section 1.6, to all
Holders of Securities of that series notice of such failure.
Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act.
To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any
particular series of Securities other than that series or any series of
securities issued under any subordinated indenture entered into by the Company.
SECTION 7.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee for each series of Securities
hereunder which shall be either (1) a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal or State
authority or (2) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees; in either case having a
combined capital and surplus of at least $50,000,000. If such corporation or
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
or Person shall be
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deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as trustee for the Securities of any series issued hereunder. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 7.10 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 7.11.
(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 7.11 shall not have been delivered to the resigning 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. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 7.8 after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of a series as to which the Trustee has a
conflicting interest for at least six months; or
(2) the Trustee for a series shall cease to be eligible under
Section 7.9 and shall fail to resign after written request therefor by
the Company or by any Holder of Securities of such series; or
(3) the Trustee shall become incapable of acting; or
(4) the Trustee 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,
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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 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
(and, in the case of Clause (1) above, who is a holder of a Security of a series
as to which the Trustee has a conflicting interest) may, on behalf of himself or
herself 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 with respect to such series,
or in the case of Clause (4) above with the respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the 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
of or all such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and such successor Trustee
or Trustees shall comply with the applicable requirements of Section 7.11. 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 7.11, 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 7.11, 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
by giving notice of such event to all Holders of Securities of such series as
provided by 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 7.11 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
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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.
(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 cotrustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsection (a) or Subsection (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 7.12 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 that
such corporation shall be otherwise qualified and eligible under this
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Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to Section 311(a) of the Trust Indenture Act
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.14 JUDGMENT CURRENCY
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that if for the purpose of obtaining a judgment in any
court with respect to any obligation of the Company hereunder or under any
Security or Coupon, it shall become necessary to convert into any other currency
or currency unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made at the
Conversion Rate (as defined below) as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment is
made and there shall occur a change between such Conversion Rate and the
Conversion Rate as in effect on the date of payment or distribution, the Company
agrees, to the fullest extent that it may effectively do so under applicable
law, to pay such additional amounts (if any) as may be necessary to ensure that
the amount paid is the amount in such other currency or currency unit which,
when converted at the Conversion Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such Security or Coupon.
Any amount due from the Company under this Section 7.14 shall be due as a
separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security or
Coupon so that in any event the Company's obligations hereunder or under such
Security or Coupon will be effectively maintained as obligations in such
currency or currency unit. In no event, however, shall the Company be required
to pay more in the currency or currency unit stated to be due hereunder or under
such Security or Coupon.
For purposes of this Section 7.14, "Conversion Rate" shall mean, as of
any date, for any currency or currency unit into which an amount due hereunder
or under any Security or Coupon is to be converted, the noon buying rate in the
other currency or currency unit for that currency or currency unit for cable
transfers quoted in New York City on such date as certified for customs purposes
by the Federal Reserve Bank of New York. If such rates are not available for any
reason with respect to one or more currencies or currency units for which a
Conversion Rate is required, the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City or in the country of issue of
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the currency in question, or such other quotations as the Exchange Rate Agent
shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent,
if there is more than one market for dealing in a currency or currency unit by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such currency or currency unit shall be that upon which a nonresident
issuer of securities designated in such currency or currency unit would, as
determined in its sole discretion and without liability on the part of the
Exchange Rate Agent, purchase such currency or currency unit in order to make
payments in respect of such Securities. If there does not exist a quoted
exchange rate in any currency or currency unit (the "First Currency") for
another currency unit (the "Second Currency"), then the Conversion Rate for the
Second Currency shall be equal to equivalent amount in the First Currency
obtained by converting the Specified Amount of each Component Currency of the
Second Currency into the First Currency at the Conversion Rate (determined as
provided above) for each such Component Currency on such date (or, if the First
Currency is a currency unit for which there is no quoted exchange rate in any
Component Currency, by converting the Specified Amount of each Component
Currency of the Second Currency into the Specified Amount of each Component
Currency of the First Currency at the Conversion Rate (determined as provided
above) for each such Component Currency on such date).
SECTION 7.15 APPOINTMENT OF AUTHENTICATING AGENT
The Company may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 4.5, 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 Trustee and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal, state or District of Columbia
authority or the equivalent foreign authority, in the case of an Authenticating
Agent who is not organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia. 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
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succeeding to the corporate agency or corporate trust business of such
Authenticating Agent, shall continue to be an Authenticating Agent; PROVIDED
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Company may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Trustee. 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 Company may appoint a successor Authenticating
Agent which shall be acceptable to the Trustee and shall mail, or cause to be
mailed, written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, 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 herein issued
under the within-mentioned Indenture.
__________________________________
as Trustee
By: ________________________________
As Authenticating Agent
By: ________________________________
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
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ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
(1) semiannually, not later than 15 days after each Regular
Record Date, a list in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of each series of
Registered Securities as of the preceding Regular Record Date, as the
case may be, and such information concerning the Holders of Bearer
Securities which is known to the Company or any Paying Agent other
than the Company; PROVIDED, HOWEVER, that the Company and such Paying
Agents shall have no obligation to investigate any matter relating to
any Holder of a Bearer Security or a Coupon; and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date
not more than 15 days prior to the time such list is furnished, and
such information concerning the Holders of Bearer Securities which is
known to the Company or any such Paying Agent; PROVIDED, HOWEVER, that
the Company and such Paying Agents shall have no obligation to
investigate any matter relating to any Holder of a Bearer Security or
a Coupon.
Notwithstanding the foregoing Clauses (1) and (2), at such times as the Trustee
is the Security Registrar and Paying Agent with respect to a particular series
of Securities, no such list shall be required to be furnished in respect of such
series
SECTION 8.2 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 of each series contained in the
most recent list furnished to the Trustee as provided in Section 8.1 and the
names and addresses of Holders of each series received by the Trustee in any
capacity as Security Registrar or Paying Agent. The Trustee may destroy any list
furnished to it as provided in Section 8.1 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, 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
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them shall be held accountable by reason of any disclosure of information as to
the names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 8.3 REPORTS BY TRUSTEE
(a) Within 60 days after May 15 of each year commencing with the May
15 following the Issue Date, 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 in the manner provided pursuant thereto.
(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 the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Securities are listed on any
stock exchange.
SECTION 8.4 REPORTS BY COMPANY
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time in such rules and
regulations;
(3) transmit by mail to all Holders of Securities, in the manner
and to the extent provided in the Trust Indenture Act with respect to
reports to be transmitted pursuant to the requirements of the Trust
Indenture Act, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to Clause (1) or Clause
(2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
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(4) promptly notify the Trustee when any Securities are listed on
any stock exchange.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest, if
any, 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 occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this instrument or any
successor Person which shall have theretofore become such in the manner
prescribed in Section 9.1) shall be discharged from all liability under this
Indenture and in respect of the Securities and may be dissolved and liquidated.
In the event of any such conveyance or transfer, the Company as the predecessor
Person shall be relieved of all such obligations and may be dissolved, wound-up
or liquidated at any time thereafter.
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon 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).
(3) to add any additional Events of Default with respect to all
or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable);
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; 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; PROVIDED that any such addition or change
shall not adversely affect the interests of the Holders of Securities
of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any series
as permitted by Sections 2.2 and 3.1;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to
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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 7.11(b);
(8) if allowed under applicable laws and regulations, to permit
payment in the United States of principal, premium or interest on
Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities of
one or more series in addition to or in place of certificated
Securities;
(10) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein PROVIDED such other provision as may be made shall
not adversely affect the interests of the Holders of outstanding
Securities of any series in any material respect;
(11) to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED such other provisions
as may be made shall not adversely affect the interests of the Holders
of outstanding Securities of any series in any material respect; or
(12) to secure the Securities of any or all series.
SECTION 10.2 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 all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture 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
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 6.2, or change any Place of Payment where, or the currency,
currencies or currency unit or units in which, any Security or the
principal, any premium or the 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 affect adversely the terms, if
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any, of conversion of any Security into shares or other securities of
the Company or of any other corporation,
(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,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in
the places and for the purposes specified in Section 11.2 for such
series, or
(4) modify any of the provisions of this Section or Section
6.13, except to increase any such percentage or to provide with
respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 2.2 or Section 3.1, as the
case may be, without the consent of any Holder) 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 Section 7.11(b) and 10.1(7).
For purposes of this Section 10.2, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
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.
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In connection with any supplemental indenture or waiver under this
Article Ten, the Company may, but shall not be obligated to, offer to any Holder
who consents to such supplemental indenture, or to all Holders, consideration
for such Holder's consent to such supplemental indenture.
SECTION 10.3 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
(in addition to the opinion which the Trustee is entitled to receive pursuant to
Section 2.2), and (subject to Section 7.1) 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, immunities or liabilities under this
Indenture or otherwise.
SECTION 10.4 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, unless it makes a change described in any of Clauses (1)
through (4) of Section 10.2, in which case, the supplemental indenture shall
bind only each Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security; PROVIDED that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and on or after such respective dates.
SECTION 10.5 CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.6 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.
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ARTICLE ELEVEN
COVENANTS
SECTION 11.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company covenants and agrees for the benefit of each series of
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any, on) and interests if any, on the Securities
and Coupons, if any, of that series in accordance with the terms of the
Securities and Coupons, if any, of such series and this Indenture.
SECTION 11.2 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 such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as both Registered or Bearer Securities or
only as Bearer Securities, the Company will maintain (1) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related Coupons may be presented or surrendered for payment in the
circumstances described in the proviso contained in the last sentence of this
first paragraph of Section 11.2 (and not otherwise), (2) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 11.5); PROVIDED, HOWEVER, that if the Securities of
that series are listed on any 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 any required city located outside the
United States, so long as the Securities of that series are listed on such
exchange, and (3) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States, an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange 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 and the Holders of the location, and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust Office
of the Trustee, except that Bearer Securities of that series and the related
Coupons may be presented and surrendered for payment (including payment of
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any additional amounts payable on Bearer Securities of that series pursuant to
Section 11.5) at the London office of the Trustee (or an agent with a London
office appointed by the Trustee and acceptable to the Company), and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands. No payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are denominated and
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any additional amounts payable on Securities of such
series pursuant to Section 11.5) shall be made at the office of the Company's
Paying Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 11.3 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 (and premium, if any, on) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the relevant currency (or a sufficient number
of currency units, as the case may be) sufficient to pay the principal (and
premium, if any, on) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any, on) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest, if any, on Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in making of any
payment of principal (and premium, if any, on) or interest, if any, on
the Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and Coupons, if any, shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense and at the direction of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains unclaimed and that, after a
date specified herein, 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.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
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SECTION 11.4 STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year if any Securities are outstanding under this Indenture, a
written certificate signed by the chairman, chief executive officer, the chief
financial officer, the chief accounting officer of the Company or any person
acting in a similar capacity, stating that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his or her
supervision;
(2) to his or her knowledge, based on such review, the Company
has fulfilled all its obligations, and has complied with all
conditions and covenants, under this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such
obligation, condition or covenant, specifying each such default known
to him or her and the nature and status thereof.
For purposes of this Section 11.4, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 11.5 ADDITIONAL AMOUNTS
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any related Coupon additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or
payment of any related Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable) in any provisions
hereof shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related Coupons who are United
States Aliens (as defined in such Securities) without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such Payments to such Holders of Securities or Coupons and the
Company will
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pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.1 APPLICABILITY OF ARTICLE
The Company may reserve the right to redeem and pay before Stated
Maturity all or any part of the Securities of any series, either by optional
redemption, sinking or purchase fund or analogous obligation or otherwise, by
provision therefor in the form of Security for such series established and
approved pursuant to Section 2.2 or Section 3.1, as the case may be, and on such
terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 2.2 or Section 3.1, as the case may be. 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
2.2 or Section 3.1, as the case may be, for Securities of any series) in
accordance with this Article.
SECTION 12.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
If the Company shall desire to exercise the right to redeem all, or,
as the case may be, any part of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notifying the Trustee of
such Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities (1) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (2) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 12.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities 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. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption
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shall be equal to the minimum authorized denomination of the Securities of such
series, or an integral multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.4 NOTICE OF REDEMPTION
Notice of redemption shall be given not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
as provided in Section 1.6.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the Redemption Date will
be paid as specified in said notice, that the redemption is pursuant to the
sinking fund, if such is the case, and that on and after said Redemption Date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue unless the Company shall default in the payment of the Redemption Price
(including any applicable accrued interest). If less than all the Securities of
any series are to be redeemed, the notice of redemption shall specify the
registration and, if any, CUSIP, ISIN or Common Code numbers of the Securities
of such series to be redeemed, and, if only Bearer Securities of any series are
to be redeemed, and if such Bearer Securities may be exchanged for Registered
Securities, the last date on which exchanges of Bearer Securities for Registered
Securities not subject to redemption may be made. In case any Security of any
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof and with appropriate Coupons will
be issued, or, in the case of Registered Securities providing appropriate space
for such notation, at the option of the Holders, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion thereof.
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.
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SECTION 12.5 DEPOSIT OF REDEMPTION PRICE
On or before 11:00 a.m. on 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 11.3)
an amount of money in the relevant currency (or a sufficient number of currency
units, as the case may be) 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.
SECTION 12.6 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 is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
otherwise provided in Section 11.2) and, unless otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, only upon
presentation and surrender of Coupons for such interest; PROVIDED FURTHER that,
unless otherwise specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 4.6.
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 11.2) and, unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, 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.
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SECTION 12.7 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 duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities (with appropriate
Coupons) of the same series and Stated Maturity, 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 or, in the case of Registered Securities providing appropriate space
for such notation, at the option of the Holder, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the Payment of the redeemed portion thereof.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 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 2.2 or Section 3.1, as the case may be, 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 13.2. 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 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company (1) may deliver Outstanding Securities (including all
unmatured Coupons appertaining thereto) of a series (other than any previously
called for redemption) 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 the outstanding principal amount thereof credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption
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through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.3 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 13.2 and will also deliver to the Trustee any Securities
(including all unmatured Coupons appertaining thereto) to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 12.3 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 12.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 12.6
and 12.7.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED
A meeting of Holders of Securities of any 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.
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 14.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London, as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.6, not less than 20
nor more than 180 days prior to the date fixed for the meeting; PROVIDED,
HOWEVER, that publication shall occur at least twice, with each publication to
be not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 25% 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 14.1, 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 20 days after receipt of
such request or shall not thereafter proceed to
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cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York, or in London, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in Subsection (a) of this Section.
SECTION 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 (1) a Holder of one or more Outstanding Securities of
such series or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 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. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined 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 14.2(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.
Except as limited by the proviso to Section 10.2, and subject to the
provisions described in the next succeeding paragraph, 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 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 equal to or 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.
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With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a specified
percentage of Outstanding Securities of all series affected thereby (acting as
one class), only the principal amount of Outstanding Securities of any series
represented at a meeting or adjourned meeting duly reconvened at which a quorum
is present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
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 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 holder 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 14.2(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 (or the equivalent thereof)
principal amount of the Outstanding Securities of such series held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.2 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.
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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 14.2 and, if
applicable, Section 14.4. 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.
ARTICLE FIFTEEN
SUBORDINATION
SECTION 15.1 AGREEMENT TO SUBORDINATE
The Company agrees, and each Holder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article Fifteen, to
the prior payment of all Senior Indebtedness, and that such subordination is for
the benefit of and enforceable by the holders of Senior Indebtedness. Only
indebtedness of the Company which is Senior Indebtedness shall rank senior to
the Securities in accordance with the provisions set forth herein. All
provisions of this Article Fifteen shall be subject to Section 15.12.
SECTION 15.2 LIQUIDATION, DISSOLUTION, BANKRUPTCY
Upon any payment or distribution of the assets of the Company to
creditors upon a total or partial liquidation or a total or partial dissolution
of the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its respective properties:
(1) holders off Senior Indebtedness shall be entitled to receive
payment in full of the Senior Indebtedness before the Holders of
Securities shall be entitled to receive any payment of principal of or
interest on other amounts with respect to the Securities; and
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(2) until the Senior Indebtedness is paid in full, any distribution to which
the Holders of Securities would be entitled but for this Article Fifteen
shall be made to holders of Senior Indebtedness as their interests may
appear,
except, in the case of Clauses (1) and (2), that Holders of Securities
may receive shares of share capital and any debt securities that are
subordinated to Senior Indebtedness to at least the same extent as the
Securities and do not provide for the payment of principal prior to the Stated
Maturity of all Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Nine hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Article if the Person formed by such consolidation or the surviving entity of
such merger of the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article Nine.
SECTION 15.3 DEFAULT ON SENIOR INDEBTEDNESS
The Company may not pay the principal of or interest on or other
amounts with respect to the Securities, make any deposit pursuant to Section
11.3 or repurchase, redeem or otherwise retire any Securities (collectively,
"pay the Securities") if (1) any Senior Indebtedness is not paid when due or (2)
any other default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(i) the default has been cured or waived and any such acceleration has been
rescinded or (ii) such Senior Indebtedness has been paid in full; provided,
however, that the Company may pay the Securities without regard to the foregoing
if the Company and the Trustee receive written notice approving such payment
from the Representatives of the Senior Indebtedness with respect to which either
of the events set forth in Clause (1) or (2) of the immediately preceding
sentence has occurred or is continuing. During the continuance of any default
with respect to any Designated Senior Indebtedness, pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, the Company may not pay the Securities for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
(with a copy to the Company) of written notice (a "Blockage Notice") of such
default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 90 days
thereafter (or earlier if such Payment Blockage Period is terminated (1) by
written notice to the Trustee and the Company from the Person or Persons who
gave such Blockage Notice, (2) by repayment in full of such Designated Senior
Indebtedness, or (3) because the default giving rise to such Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have
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accelerated the maturity of such Designated Senior Indebtedness, the Company may
resume payments on the Securities after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period. No
Event of Default which existed or was continuing on the date of the commencement
of any Blockage Period with respect to the Designated Senior Indebtedness shall
be, or be made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
SECTION 15.4 ACCELERATION OF PAYMENT OF SECURITIES
If payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
Senior Indebtedness (or their Representatives) of the acceleration. If any
Senior Indebtedness is outstanding, the Company may not pay the Securities until
five Business Days after Representatives of the Senior Indebtedness receive
notice of such acceleration and, thereafter, may pay the Securities only if this
Article Fifteen otherwise permits payments at that time.
SECTION 15.5 WHEN DISTRIBUTIONS MUST BE PAID OVER
If a distribution is made to the Holders of Securities that because of
this Article Fifteen should not have been made to them, the Holders of
Securities who receive the distribution shall hold it in trust for holders of
Senior Indebtedness and pay it over to them as their interests may appear.
SECTION 15.6 SUBROGATION
After all Senior Indebtedness is paid in full and until the Securities
are paid in full, Holders of Securities shall be subrogated to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article Fifteen to holders of
Senior Indebtedness which otherwise would have been made to Holders of
Securities is not, as between the Company and Holders of Securities, a payment
by the Company on Senior Indebtedness.
SECTION 15.7 RELATIVE RIGHTS
This Article Fifteen defines the relative rights of Holders of
Securities and holders of Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Securities, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms; or
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(2) prevent the Trustee or any Holder of Securities from exercising its
available remedies upon an Event of Default, subject to the rights of
holders of Senior Indebtedness to receive distributions otherwise payable
to Holders of Securities.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Fifteen shall have
been applied, pursuant to the provisions of this Article Fifteen, to the payment
of all amounts payable under the Senior Indebtedness of the Company, then and in
such case the Holders shall be entitled to receive from the holders of such
Senior Indebtedness at the time outstanding any payments or distributions
received by such holders of such Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable under or in respect of such Senior
Indebtedness in full in cash or cash equivalents.
SECTION 15.8 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by the failure of the Company to
comply with this Indenture.
SECTION 15.9 RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding Section 15.3, the Trustee or Paying Agent may continue
to make payments on the Securities and shall not be charged with knowledge of
the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
trust officer of the Trustee receives notice satisfactory to it that payments
may not be made under this Article Fifteen. The Company, the Registrar or co-
registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness
may give the notice; PROVIDED, HOWEVER, that, if an issuer of Senior
Indebtedness has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article Fifteen with respect to any Senior Indebtedness, which may at any time
be held by it, to the same extent as any other holder of Senior Indebtedness;
and nothing in Article Seven shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Article Seven.
SECTION 15.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representatives (if any).
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SECTION 15.11 ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT
TO ACCELERATE
The failure to make a payment pursuant to the Securities by reason of
any provision in this Article Fifteen shall not be construed as preventing the
occurrence of an Event of Default. Nothing in this Article Fifteen shall have
any effect on the right of the Holders of Securities or the Trustee to
accelerate the maturity of the Securities.
SECTION 15.12 TRUST MONEYS NOT SUBORDINATED
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of U.S. government obligations held in trust under
Section 11.3 by the Trustee for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness, or subject to the restrictions set forth in this Article Fifteen,
and none of the Holders of Securities shall be obligated to pay over any such
amount to the Company, or any holder of Senior Indebtedness of the Company or
any other creditor of the Company.
SECTION 15.13 TRUSTEE ENTITLED TO RELY UPON ANY PAYMENT OR DISTRIBUTION
Pursuant to this Article Fifteen, the Trustee and the Holders of
Securities shall be entitled to rely (1) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 15.2 are pending, (2) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Holders of Securities or (3) upon the Representatives for the holders of
Senior Indebtedness for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness, and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen. In the event that the
Trustee determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Fifteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this Article
Fifteen, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 15.14 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of Securities by accepting a Security authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the Holders
of Securities and the holders of Senior Indebtedness as provided in this Article
Fifteen and appoints the Trustee as attorney-in-fact for any and all such
purposes.
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SECTION 15.15 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Securities, the Company,
or any other Person, money or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article Fifteen or otherwise.
SECTION 15.16 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS
Each Holder of Securities by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness.
93
<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.
APEX SILVER MINES LIMITED
By
[SEAL] ---------------------------
Attest:
- ----------------------------
------------------------------
as Trustee,
By
[SEAL] ---------------------------
Attest:
- ----------------------------
94
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , , before me personally came
----- --------- -----
, to me known, who, being by me duly sworn, did depose and say
- ------------------
that he is a of APEX SILVER MINES LIMITED, 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.
------------------------------------
Notary Public
Notary Public, State of New York
No.
---------
Qualified in
---------
Commission Expires
---------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , , before me personally came
---- --------- ----
, to me known, who, being by me duly sworn, did depose and say
- ------------------
that he is a of , 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.
-----------------------------------
Notary Public
Notary Public, State of New York
No.
---------
Qualified in
---------
Commission Expires
---------
95
<PAGE>
EXHIBIT A
[RESERVED]
A-1
<PAGE>
EXHIBIT B
[FORMS OF CERTIFICATION]
B-1
<PAGE>
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States, or,
if a beneficial interest in the Securities is being acquired by a United States
person, that such United States person is a financial institution as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is
acquiring through a financial institution, and that the Securities were held by
a financial institution that has agreed to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and that it is not purchasing for offer
to resell or for resale inside the United States.
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, or 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.
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 such Securities.
B-1-1
<PAGE>
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
, the date
- ------------- ----
determined as provided in the
Indenture]
[Name of Person Entitled to Receive
Bearer Security]
-----------------------------------
(Authorized Signatory)
Name:
Title:
B-1-2
<PAGE>
EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL
IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify with respect to $ principal amount of the
---------
above-captioned Securities (i) 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 (ii) 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.
Date: ,
------------- ----
[To be dated no earlier than
The Exchange Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL]
By
------------------------------------
B-2-1
<PAGE>
EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
APEX SILVER MINES LIMITED
[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.
Date: ,
---------------- -----
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL]
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
APEX SILVER MINES LIMITED
[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, the above-captioned
Securities held by you for our account are not beneficially owned by a United
States person, and have not been acquired by or on behalf of a United States
person, or for offer to resell or for resale to a United States person or any
person inside the United States, or, if any of such Securities held by you for
our account are beneficially owned by a United States person, (i) 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 purchasing for its own
account or has acquired such Securities through a financial institution and (ii)
such Securities are held by a financial institution that has agreed to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder and that it did
not purchase for offer to resell or for resale inside the United States.
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 or 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 yet able to certify and as to
which we understand interest cannot be credited unless and until we are able to
so certify.
B-4-1
<PAGE>
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.
Date: ,
------------- ----
[To be dated on or after
the 15th day before the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
-------------------------------------
(Authorized Signature)
Name:
Title:
B-4-2
<PAGE>
EXHIBIT B.5
[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]
By your purchase of the securities referred to in the accompanying
confirmation (the "Securities"):
You represent that you are not a United States person or, if you are a
United States person, you are a financial institution as that term is defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are
acquiring through a financial institution, and that the Securities will be held
by a financial institution that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder and are not purchasing the
Securities on behalf of any United States person other than such a financial
institution or for offer to resell or for resale inside the United States.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of such Securities, directly or indirectly, in the United States or to any
United States person other than such a financial institution and (b) you agree
that you will deliver to all purchasers of such Securities from you a written
statement in this form.
As used herein, "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 and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
B-5-1
<PAGE>
Exhibit 4.6
APEX SILVER MINES LIMITED
NUMBER SHARES
- ------ ------
INCORPORATED IN THE CAYMAN ISLANDS UNDER THE COMPANIES LAW
(AS AMENDED OR REVISED FROM TIME TO TIME)
THE AUTHORISED SHARE CAPITAL OF THE COMPANY IS US $750,000
DIVIDED INTO 75,000,000 SHARES OF A NOMINAL OR PAR VALUE OF
US $0.01 EACH
This Certifies that ___________________________________________________________
of _____________________________________________________________________ is the
registered holder of [ ] Preference Shares fully
--------------------------------------------
paid and non-assessable, subject to the Memorandum and the Articles of
Association of the Company, and transferable only on the books of the Company by
the holder hereof in person or by Attorney upon surrender of this certificate
properly endorsed.
Given under the Common Seal of the Company
this _______________ day of _________ 19__
The Common Seal of the Company was hereunto affixed in the presence of
[SEAL]
___________________________ ___________________________
SECRETARY DIRECTOR
<PAGE>
Exhibit 5.1
W.S. WALKER & COMPANY
Attorneys-at-Law
Caledonian House, P.O. Box 265
George Town, Grand Cayman
Cayman Islands
Tel: (345) 949-0100 Fax: (345) 949-7886
Internet: [email protected]
Our Ref: GC/MPL/fm/A181-09400
29th March, 1999
Apex Silver Mines Limited
Caledonian House
Jennett Street
P.O. Box 1043
George Town
Grand Cayman
CAYMAN ISLANDS
Dear Sirs:
This opinion is delivered in connection with the filing of a Registration
Statement on Form S-3 (the "Registration Statement") filed with the Securities
Exchange Commission under the U.S. Securities Act of 1933, as amended (the
"Act"), by Apex Silver Mines Limited, a Cayman Islands company ("Apex"), for the
registration of the sale from time to time of up to US$200,000,000 aggregate
amount of (i) ordinary shares, par value US$0.01 per share, of Apex ("Ordinary
Shares"), (ii) depositary shares of Apex ("Depositary Shares"), (iii) preference
shares, par value US$0.01 per share of Apex ("Preference Shares"), (iv) warrants
for the purchase of preference shares or ordinary shares of Apex ("Warrants"),
(v) rights to purchase ordinary shares of Apex ("Ordinary Share Purchase
Rights") and (vi) senior debt securities and/or subordinated debt securities of
Apex ("Debt Securities") (each of the Ordinary Shares, the Depositary
Shares, the Preference Shares, the Warrants, the Ordinary Share Purchase Rights
and the Debt Securities referred to herein as a "Security" and collectively
referred to herein as, the "Securities").
For the purposes of giving this opinion, we have examined the documents (the
"Documents") listed in Schedule 1 hereto.
In giving this opinion we have relied upon the assumptions set out in Schedule 2
hereto, which we have not independently verified.
We are Attorneys-at-Law in the Cayman Islands and express no opinion as to any
laws other than the laws of the Cayman Islands in force and as interpreted at
the date hereof. Except as explicitly stated herein, we express no opinion in
relation to any representation or warranty contained in the documents nor upon
the commercial terms of the transactions contemplated by the documents.
Based upon the foregoing examinations and assumptions and upon such searches as
we have conducted and having regard to legal considerations which we deem
relevant, we are of the opinion that under the law of the Cayman Islands:
<PAGE>
1. With respect to each of the Ordinary Shares, when (i) the Board of
Directors of Apex or a committee thereof properly empowered (such Board of
Directors or committee being hereinafter referred to as the "Apex Board")
has taken all necessary corporate action to approve the issuance of and the
terms of the offering of the Ordinary Shares and related matters, and (ii)
entries have been made in the Register of Members of Apex and certificates
representing the Ordinary Shares have been duly executed, countersigned,
registered and delivered (a) for consideration approved by the Apex Board
or (b) upon consideration by way of conversion or exercise of any other
Security in accordance with the terms of such Security or the instrument
governing such Security providing for such conversion or exercise as
approved by the Apex Board, the Ordinary Shares will be duly authorized,
validly issued, fully paid and non-assessable.
2. With respect to the Preference Shares, when (i) the Apex Board has taken
all necessary corporate action to approve the issuance and terms of the
Preference Shares, the terms of the offering thereof and related matters,
including the adoption of resolutions establishing the terms of such
Preference Shares, and (ii) entries have been made in the Register of
Members of Apex and certificates representing the Preference Shares have
been executed, countersigned, registered and delivered (a) for
consideration approved by the Apex Board or (b) upon consideration by way
of conversion or exercise of any other Security in accordance with the
terms of such Security or the instrument governing such Security providing
for such conversion or exercise as approved by the Apex Board, the
Preference Shares will be duly authorized, validly issued, fully paid and
non-assessable.
3. With respect to the Depositary Shares, when (i) the Apex Board has taken
all necessary corporate action to approve the issuance and terms of the
Depositary Shares, the terms of the offering thereof and related matters,
including the adoption of resolutions establishing the terms of such
Depositary Shares, and (ii) entries have been made in the Register of
Members of Apex and certificates representing the Depositary Shares have
been executed, countersigned, registered and delivered (a) for
consideration approved by the Apex Board or (b) upon consideration by way
of conversion or exercise of any other Security in accordance with the
terms of such Security or the instrument governing such Security providing
for such conversion or exercise as approved by the Apex Board, the
Depositary Shares will be duly authorized, validly issued, fully paid and
non-assessable.
4. With respect to the Ordinary Share Purchase Rights, when (i) the Apex Board
has taken all necessary corporate action to approve the issuance and terms
of the Ordinary Share Purchase Rights, the terms of the offering thereof
and related matters, including the adoption of resolutions establishing the
terms of such Ordinary Share Purchase Rights, and (ii) certificates
representing the Ordinary Share Purchase Rights have been executed,
countersigned, registered and delivered for consideration approved by the
Apex Board, the Ordinary Share Purchase Rights will be duly authorized and
validly issued.
5. With respect to the Warrants, when (i) the Apex Board has taken all
necessary corporate action to approve and enter into one or more relevant
warrant agreements or amendments or supplements thereto, as described in
the Registration Statement, as amended or supplemented, or any prospectus
or prospectus supplement and pursuant thereto, approve the issuance and
terms of the Warrants, the terms of the offering thereof and related
matters, including the adoption of resolutions establishing the terms of
such Warrants, and (ii) certificates representing the
2
<PAGE>
Warrants have been executed, countersigned, registered and delivered for
consideration approved by the Apex Board, the Warrants will be duly
authorized and validly issued.
6. With respect to the Debt Securities, when (i) the Apex Board has taken all
necessary corporate action to approve and enter into one or more relevant
indentures or amendments or supplements thereto, as described in the
Registration Statement, as amended or supplemented, or any prospectus or
prospectus supplement and pursuant thereto, approve the issuance and terms
of the Debt Securities, the terms of the offering thereof and related
matters, including the adoption of resolutions establishing the terms of
such Debt Securities, and (ii) certificates representing the Debt
Securities have been executed, countersigned, registered and delivered for
consideration approved by the Apex Board, the Debt Securities will be duly
authorized and validly issued.
This opinion is limited to the matters referred to herein and shall not be
construed as extending to any other matter or document not referred to herein.
This opinion is given solely for your benefit and the benefit of your legal
advisers acting in that capacity in relation to this transaction and may not be
relied upon by any other person without our prior written consent. This opinion
is governed by and shall be construed in accordance with the laws of the Cayman
Islands.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and all references to our name in the Registration
Statement. In giving such consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the U.S.
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereof.
Yours faithfully,
/s/ W.S. Walker & Company
W.S. Walker & Company
3
<PAGE>
Schedule 1
1. The Memorandum and Articles of Association of Apex;
2. The Registration Statement; and
3. Such other documents as we have considered necessary for the purposes of
rendering this opinion.
4
<PAGE>
Schedule 2
The opinions hereinbefore given are based upon the following assumptions:
1. There are no provisions of the laws of any jurisdiction outside the Cayman
Islands which would be contravened by the execution or delivery of the
Documents and that, in so far as any obligation expressed to be incurred
under the Documents is to be performed in or is otherwise subject to the
laws of any jurisdiction outside the Cayman Islands, its performance will
not be illegal by virtue of the laws of that jurisdiction.
2. All authorizations, approvals, consents, licenses and exemptions required by
and all filings and other requirements of each of the parties to the
Documents outside the Cayman Islands to ensure the legality and validity of
the Documents will be duly obtained, made or fulfilled and will remain in
full force and effect and that any conditions to which they are subject will
be satisfied.
3. None of the parties to any of the Documents will be
(a) a "person in Iraq" as that term is defined in The Iraq and Kuwait
(United Nations Sanctions) (Dependent Territories) Order 1990 or an
"Iraqi person" as defined in The Iraq (United Nations) (Sequestration
of Assets) (Dependent Territories) Order 1993 or a person resident in
the Republic of Iraq for the purposes of the Caribbean Territories
(Control of Gold, Securities, Payment and Credits: Kuwait and
Republic of Iraq) Order 1990; or
(b) a "person connected with Libya" as that term is defined in The Libya
(United Nations Sanctions) (Dependent Territories) Order 1992.
5
<PAGE>
Exhibit 5.2
-----------
[Akin, Gump, Strauss, Hauer & Feld, L.L.P. Letterhead]
April 13, 1999
Apex Silver Mines Limited
Caledonian House
Jennett Street
George Town, Grand Cayman
Cayman Island, British West Indies
Ladies and Gentlemen:
We have acted as counsel to Apex Silver Mines Limited (the "Company"), a
Cayman Islands corporation, in connection with the filing of a registration
statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, for the
registration of the sale from time to time of up to $200,000,000 aggregate
amount of (i) senior debt securities and unsecured subordinated debt securities
of the Company (collectively, the "Debt Securities"), (ii) preference shares,
par value $0.01 per share, of the Company (the "Preference Shares"), (iii)
depositary shares representing a fraction of a share of a particular class or
series of Preference Shares (the "Depositary Shares"), (iv) ordinary shares, par
value $0.01 per share, of the Company (the "Ordinary Shares"), (v) warrants of
the Company to purchase Ordinary Shares and/or Preference Shares (the
"Warrants") and (vi) rights to purchase Ordinary Shares (the "Ordinary Share
Purchase Rights").
We have examined (i) the Registration Statement, (ii) the form of Senior
Indenture to be executed by the Company and Wilmington Trust Company, as trustee
(the "Senior Debt Indenture"), and (iii) the form of Subordinated Indenture to
be executed by the Company and Wilmington Trust FSB, as trustee (the
Subordinated Debt Indenture, and together with the Senior Debt Indenture, the
"Indentures").
As such counsel, we have examined and are familiar with originals or
copies, certified or otherwise identified to our satisfaction, of such corporate
documents of the Company, certificates of public officials and certificates of
directors of the Company and such other documents and agreements and records and
papers as we have deemed necessary or appropriate in order to render this
opinion.
In our examination, we have assumed the authenticity of all documents
submitted to us as originals, the signature of all parties to documents, the
legal right and power of all parties to enter
<PAGE>
into and execute the documents to which they are a party and to consummate the
transactions contemplated therein, and the conformity to original documents of
all documents submitted to us as certified or photostatic copies.
Based upon such examination and representations of the Company and subject
to the qualifications contained herein, we advise you that, in our opinion:
1. Assuming that the Indentures, any Debt Securities and any supplemental
indentures to be entered into in connection with the issuance of such Debt
Securities have been duly authorized, when (i) the Indentures have been
qualified under the Trust Indenture Act of 1939, as amended, (ii) a supplemental
indenture in respect of the Debt Securities has been duly executed and
delivered, (iii) the terms of the Debt Securities have been duly established in
accordance with the applicable Indenture and the applicable supplemental
indenture relating to such Debt Securities so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental or regulatory body having jurisdiction over
the Company, and (iv) the Debt Securities have been duly executed and
authenticated by the applicable trustee in accordance with the applicable
Indenture and the applicable supplemental indenture relating to such Debt
Securities and duly issued and delivered by the Company in the manner
contemplated by the Registration Statement and any prospectus supplement
relating thereto, the Debt Securities (including any Debt Securities duly issued
upon exchange or conversion of any shares of Preference Shares or Depositary
Shares that are exchangeable or convertible into Debt Securities) will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws now or hereinafter in effect relating to or
affecting the enforcement of creditor's rights generally, (b) the availability
of equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law or in
equity) and (c) the waiver of usury, stay or extension laws contained in Section
6.15 of the Indentures may be deemed unenforceable, and except further as
enforcement thereof may be limited by (A) requirements that a claim with respect
to any Debt Securities denominated other than in U.S. dollars (or a foreign or
composite currency judgement in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States.
2. Assuming that a Warrant Agreement relating to the Warrants (the
"Warrant Agreement") has been duly authorized, when (i) the Warrant Agreement
has been duly executed and delivered, (ii) the terms of the Warrants and of
their issuance and sale have been duly established in conformity with the
Warrant Agreement relating to such Warrants so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by
2
<PAGE>
any court or governmental or regulatory body having jurisdiction over the
Company, and (iii) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement relating to such Warrants, and issued and
sold in the form and in the manner contemplated in the Registration Statement
and any prospectus supplement relating thereto, such Warrants will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws now or hereinafter in effect relating to or affecting creditors'
rights generally, and (b) the availability of equitable remedies may be limited
by equitable principles of general applicability (regardless of whether
considered in a proceeding at law or in equity).
3. Assuming that an Ordinary Share Purchase Rights Agreement relating to
the Ordinary Share Purchase Rights (the "Ordinary Share Purchase Rights
Agreement") and such Ordinary Share Purchase Rights have been duly authorized,
when (i) the Ordinary Share Purchase Rights Agreement has been duly executed and
delivered, (ii) the terms of the Ordinary Share Purchase Rights and of their
issuance and sale have been duly established in conformity with the Ordinary
Share Purchase Rights Agreement so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental or regulatory body having jurisdiction over the
Company, and (iii) the Ordinary Share Purchase Rights have been duly executed
and issued in accordance with the Ordinary Share Purchase Rights Agreement
relating to such Ordinary Share Purchase Rights, and issued and sold in the form
and in the manner contemplated in the Registration Statement and any prospectus
supplement relating thereto, such Ordinary Share Purchase Rights will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws now or hereinafter in effect relating to or affecting creditors'
rights generally, and (b) the availability of equitable remedies may be limited
by equitable principles of general applicability (regardless of whether
considered in a proceeding at law or in equity).
In connection with the opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any security, (i) the Company's board of
directors shall have duly established the terms of such security and duly
authorized the issuance and sale of such security and such authorization shall
not have been modified or rescinded, (ii) the Registration Statement shall have
been declared effective and such effectiveness shall not have been terminated or
rescinded and there shall not have been issued any stop order suspending the
effectiveness of the Registration Statement, and (iii) there shall not have
occurred any change in law affecting the validity or enforceability of such
security. We have also assumed that none of the terms of any security to be
established subsequent to the date hereof, nor the issuance and delivery of such
security, nor the compliance by the Company with the terms of such security will
violate any applicable law or will result in a violation of any provision of any
instrument or agreement then
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binding upon the Company, or any restriction imposed by any court or
governmental body having jurisdiction over the Company.
This law firm is a registered limited liability partnership organized under
the laws of the State of Texas. Our opinion relates only to the laws of the
State of New York and the federal law of the United States of America. We
express no opinion of the law of any other jurisdiction.
This opinion is limited to the matters stated herein, and no opinion is
implied or may be inferred beyond the matters expressly stated. This opinion may
not be relied upon by you for any other purpose or relied upon by or furnished
to any other person without our prior written consent. We assume herein no
obligation, and hereby disclaim any obligation, to make any inquiry after the
date hereof or to advise you of any future changes in the foregoing or of any
facts or circumstances that may hereafter come to our attention.
We hereby consent to the filing of this opinion as Exhibit 5.2 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
In giving such consent, we do not hereby admit that we come within the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Securities and Exchange Commission thereof.
Very truly yours,
/s/ Akin, Gump, Strauss, Hauer & Feld, L.L.P.
4
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus consulting
part of this Registration Statement on Form S-3 of our report dated March 24,
1999 appearing on page F-2 of Apex Silver Mines Limited's Annual Report on Form
10-K for the year ended December 31, 1998. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Denver, Colorado
April 12, 1999
<PAGE>
EXHIBIT 23.4
Consent of Mine Reserves Associates, Inc.
We hereby consent to references to our name and to any analyses performed
by us in our capacity as an independent consultant to Apex Silver Mines Limited
(the "Company") which are set forth in or incorporated by reference into the
registration statement on Form S-3 to be filed by the Company with the
Securities and Exchange Commission (the "Commission") on April 13, 1999 or any
related abbreviated registration statement filed by the Company with the
Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
or in any amendment or supplement to any of the foregoing.
/s/ Donald C. Elkin
------------------------------
Name: Donald C. Elkin
Title: President
Mine Reserves Associates, Inc.
Wheat Ridge, Colorado
April 13, 1999
<PAGE>
Exhibit 25.1
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
APEX SILVER MINES LIMITED
(Exact name of obligor as specified in its charter)
Cayman Islands Not Applicable
(State of incorporation) (I.R.S. employer identification no.)
Caledonian House
Jennett Street
George Town, Grand Cayman
Cayman Islands, British West Indies Not Applicable
(Address of principal executive offices) (Zip Code)
Senior Debt Securities
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an affiliate of
the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 24th day
of March, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Patricia A. Evans By:/s/ Donald G. MacKelcan
-------------------------- -----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
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<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive deposits
of money, or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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<PAGE>
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security for
the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any private,
public or municipal corporation within and without the State of
Delaware, or of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose
of interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board
of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of
any person, firm, association or corporation, and to pay for the
same in cash, stock of this Corporation, bonds or otherwise; to
hold or in any manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner the whole or
any part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and,
without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent
as natural persons might or could do, to purchase or otherwise
acquire, to hold, own, to mortgage, sell, convey or otherwise
dispose of, real and personal property, of every class and
description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
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<PAGE>
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes,
or series of the same or other class of
5
<PAGE>
stock and whether such dividends shall be cumulative or non-
cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any
other class or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under
such circumstances and on such conditions as the Board of Directors
may determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred
Stock in the event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation, the holders of the Common Stock shall be entitled to
6
<PAGE>
receive all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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<PAGE>
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE>
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as one class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder), which, after
such merger or consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market value
of $1,000,000 or more, or
10
<PAGE>
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or
any similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any Affiliate of
any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
11
<PAGE>
such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
12
<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value
of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of
stock shall be issued only upon giving such security as may be satisfactory to
the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
-------- -------
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: March 24, 1999 By: /s/ Donald G. MacKelcan
---------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any state
banking authorities. Refer to your appropriate state banking authorities for
your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- --------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1998.
--------
<TABLE>
<S> <C>
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................ 194,839
Interest-bearing balances.......................................... 0
Held-to-maturity securities.............................................. 73,911
Available-for-sale securities............................................ 1,228,194
Federal funds sold and securities purchased under agreements to resell... 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 4,167,235
LESS: Allowance for loan and lease losses.......... 66,897
LESS: Allocated transfer risk reserve.............. 0
Loans and leases, net of unearned income, allowance, and reserve... 4,100,338
Assets held in trading accounts.......................................... 0
Premises and fixed assets (including capitalized leases)................. 139,079
Other real estate owned.................................................. 1,532
Investments in unconsolidated subsidiaries and associated companies...... 1,052
Customers' liability to this bank on acceptances outstanding............. 0
Intangible assets........................................................ 3,047
Other assets............................................................. 98,867
Total assets............................................................. 6,044,359
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices.......................................................... 4,474,659
Noninterest-bearing................ 1,037,549
Interest-bearing................... 3,437,110
Federal funds purchased and Securities sold under agreements to repurchase... 390,060
Demand notes issued to the U.S. Treasury..................................... 18,944
Trading liabilities (from Schedule RC-D)..................................... 0
Other borrowed money:........................................................ ///////
With original maturity of one year or less............................. 555,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities (from Schedule RC-G)....................................... 90,951
Total liabilities............................................................ 5,572,614
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................ 0
Common Stock................................................................. 500
Surplus (exclude all surplus related to preferred stock)..................... 62,118
Undivided profits and capital reserves....................................... 403,264
Net unrealized holding gains (losses) on available-for-sale securities....... 5,863
Total equity capital......................................................... 471,745
Total liabilities, limited-life preferred stock, and equity capital.......... 6,044,359
</TABLE>
2
<PAGE>
Exhibit 25.2
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST FSB
(Exact name of trustee as specified in its charter)
Delaware 52-1877389
(State of incorporation) (I.R.S. employer identification no.)
542 Riverside Drive
Salisbury, Maryland 21801
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
APEX SILVER MINES LIMITED
(Exact name of obligor as specified in its charter)
Cayman Islands Not Applicable
(State of incorporation) (I.R.S. employer identification no.)
Caledonian House
Jennett Street
George Town, Grand Cayman
Cayman Islands, British West Indies Not Applicable
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Office of Thrift Supervision
1475 Peachtree Street, N.E.
Atlanta, GA 30309
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an affiliate of
the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust FSB, which includes the
certificate of authority of Wilmington Trust FSB to commence
business and the authorization of Wilmington Trust FSB to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust FSB.
C. Consent of Wilmington Trust FSB required by Section 321(b) of Trust
Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust FSB.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust FSB, a corporation organized and existing
under the laws of Delaware, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and State of Delaware on the 24th day of March, 1999.
WILMINGTON TRUST FSB
[SEAL]
Attest:/s/ Neal J. Howard By:/s/ Howard K. Cohen
-------------------------- -----------------------------
Assistant Secretary Name: Howard K. Cohen
Title: Vice President
<PAGE>
EXHIBIT A
Charter No. 6012
FEDERAL STOCK SAVINGS BANK CHARTER
----------------------------------
WILMINGTON TRUST FSB
As existing on June 10, 1994.
SECTION 1. Corporate Title. The full corporate title of the savings bank
---------------
is Wilmington Trust FSB.
SECTION 2. Office. The home office shall be located in Salisbury,
------
Maryland.
SECTION 3. Duration. The duration of the savings bank is perpetual.
--------
SECTION 4. Purpose and Powers. The purpose of the savings bank is to
------------------
pursue any or all of the lawful objectives of a Federal savings bank chartered
under Section 5 of the Home Owners' Loan Act and to exercise all of the express,
implied, and incidental powers conferred thereby and by all acts amendatory
thereof and supplemental thereto, subject to the Constitution and laws of the
United States as they are now in effect, or as they may hereafter be amended,
and subject to all lawful and applicable rules, regulations, and orders of the
Office of Thrift Supervision ("OTS").
SECTION 5. Capital Stock. The total number of shares of all classes of
-------------
the capital stock which the savings bank has the authority to issue is
10,000,000, all of which shall be common stock of par value of $1.00 per share.
The shares may be issued from time to time as authorized by the Board of
Directors without the approval of its shareholders, except as otherwise provided
in this Section 5 or to the extend that such approval is required by governing
law, rule, or regulation. The consideration for the issuance of the shares
shall be paid in full before their issuance and shall not be less than the par
value. Neither promissory notes nor future services shall constitute payment or
part payment for the issuance of shares of the savings bank. The consideration
for the shares shall be cash, tangible or intangible property (to the extend
direct investment in such property would be permitted to the savings bank),
labor, or services actually performed for the savings bank, or any combination
of the foregoing. In the absence of actual fraud in the transaction, the value
of such property, labor, or services, as determined by the Board of Directors of
the savings bank, shall be conclusive. Upon payment of such consideration, such
shares shall be deemed to be fully paid and nonassessable. In the case of a
stock dividend, that part of the surplus of the savings bank which is
transferred to stated capital upon the issuance of shares of as a share dividend
shall be deemed to be the consideration for their issuance.
Except for shares issuable in connection with the conversion of the savings
bank from the mutual to stock form of capitalization, no shares of common stock
(including shares
<PAGE>
issuable upon conversion, exchange, or exercise of other securities) shall be
issued, directly or indirectly, to officers, directors, or controlling persons
of the savings bank other than as part of a general public offering or as
qualifying shares to a director, unless the issuance or the plan under which
they would be issued has been approved by a majority of the total votes eligible
to be cast as a legal meeting.
The holders of the common stock shall exclusively possess all voting power.
Each holder of shares of common stock shall be entitled to one vote for each
share held by such holder, except as to the cumulation of votes for the election
of directors. Subject to any provision for a liquidation account, in the event
of any liquidation, dissolution, or winding up of the savings bank, the holders
of the common stock shall be entitled, after payment or provision for payment of
all debts and liabilities of the savings bank, to receive the remaining assets
of the savings bank available for distribution, in cash or in kind. Each share
of common stock shall have the same relative rights as and be identical in all
respects with all the other shares of common stock.
SECTION 6. Preemptive Rights. Holders of the capital stock of the savings
-----------------
bank shall not be entitled to preemptive rights with respect to any shares of
the savings bank which may be issued.
SECTION 7. Directors. The savings bank shall be under the direction of a
---------
Board of Directors. The authorized number of directors, as stated in the
savings bank's bylaws, shall not be fewer than five nor more than fifteen except
when a greater number is approved by the OTS.
SECTION 8. Amendment of Charter. Except as provided in Section 5, no
--------------------
amendment, addition, alteration, change, or repeal of this charter shall be
made, unless such is first proposed by the Board of Directors of the savings
bank, then preliminarily approved by the OTS, which preliminary approval may be
granted by the OTS pursuant to regulations specifying preapproved charter
amendments, and thereafter approved by the shareholders by a majority of the
total votes eligible to be cast at a legal. Any amendment, addition,
alteration, change, or repeal so acted upon shall be effective upon filing with
the OTS in accordance with regulatory procedures or on such other date as the
OTS may specify in its preliminary approval.
<PAGE>
EXHIBIT B
BYLAWS
OF
WILMINGTON TRUST FBS
As existing on April 13, 1995
ARTICLE I
Home Office
-----------
The home office of this savings bank shall be at 542 Riverside Drive in Wicomico
County, Salisbury, Maryland.
ARTICLE II
Shareholders
------------
SECTION 1. Place of Meetings. All annual and special meetings of
--------- -----------------
shareholders shall be held at the home office of this savings bank or at such
other place in Maryland or elsewhere as the Board of Directors may determine.
SECTION 2. Annual Meeting. A meeting of this savings bank's
--------- --------------
shareholder(s) for the election of directors and for the transaction of any
other business of this savings bank shall be held annually within 120 days after
the end of this savings bank's fiscal year on the third Thursday of April, if
not a legal holiday. If that day is a legal holiday, the annual meeting shall
be held on the next day following which is not a legal holiday, at 10:00 a.m.,
or at such other date and time within at 120-day period as the Board of
Directors may determine.
SECTION 3. Special Meetings. Special meetings of this savings bank's
--------- ----------------
shareholders for any purpose or purposes, unless otherwise prescribed by the
Office of Thrift Supervision (the "OTS"); may be called at any time by the
Chairman of the Board, the President or a majority of the Board of Directors.
SECTION 4. Conduct of Meetings. The Board of Directors shall designate,
--------- -------------------
when present, either the Chairman of the Board or the President to preside at
annual and special meetings of shareholders.
SECTION 5. Notice of Meetings. Written notice stating the place, day and
--------- ------------------
hour of a shareholders' meeting and the purpose(s) for which the meeting is
called shall be delivered not
<PAGE>
fewer than 10 nor more than 50 days before the date of that meeting, either
personally or by mail, by or at the direction of the Chairman of the Board, the
President, the Secretary or the directors calling the meeting, to each
shareholder of record entitled to vote at that meeting. If mailed, that notice
shall be deemed to be delivered when deposited in the mail, addressed to the
shareholder at the address which appears on this savings bank's stock transfer
books or records as of the record date prescribed in Article II, Section 6
below, with postage prepaid. When any shareholders' meeting is adjourned for 30
days or more, notice of the adjourned meeting shall be given in the same form as
that for the original meeting. It shall not be necessary to give any notice of
the time or place of any meeting adjourned for less than 30 days or of the
business to be transacted at that meeting, other than the announcement of the
meeting from which the adjournment was taken.
SECTION 6. Record Date. To determine shareholders entitled to notice of
--------- -----------
or to vote at any meeting of shareholders or any adjournment thereof, or
shareholders entitled to receive payment of any dividend, or to make a
determination of shareholders for any other proper purpose, the Board of
Directors shall fix in advance a date as the record date for that determination.
That date shall not be more than 60 days and, in the case of a shareholders'
meeting, not less than 10 days, prior to the date on which the particular action
requiring the determination of shareholders is to be taken. When a
determination of shareholders entitled to vote has been made as provided in this
Section 6, that determination shall apply to any adjournment thereof.
SECTION 7. Voting Lists. At least 20 days before each shareholders'
--------- ------------
meeting, the officer or agent having charge of this savings bank's stock
transfer books shall make a complete list of shareholders entitled to vote at
that meeting, or any adjournment thereof, arranged in alphabetical order, with
the address and the number of shares held by each. That list of shareholders
shall be kept on file at this savings bank's home office and shall be subject to
inspection by any shareholder at any time during normal business hours for 20
days prior to that meeting. That list also shall be produced and kept open at
the time and place of the meeting and be subject to inspection by any
shareholder during the entire time of the meeting. The original stock transfer
book shall constitute prima facie evidence of the shareholders entitled to
examine that list or transfer book or to vote at any shareholders' meeting.
SECTION 8. Quorum. A majority of this savings bank's outstanding shares
--------- ------
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a shareholders' meeting. If less than a majority of the outstanding shares
is represented at the meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At an adjourned
meeting at which a quorum is present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to result in less than a quorum.
<PAGE>
SECTION 9. Proxies. At all shareholders' meetings, a shareholder may vote
--------- -------
by proxy executed in writing by the shareholder or by his or her duly authorized
attorney-in-fact. Proxies solicited on behalf of this savings bank's management
shall be voted as directed by the shareholder or, in the absence of that
direction, as determined by a majority of the Board of Directors. No proxy
shall be valid more than 11 months after the date of its execution, except a
proxy coupled with an interest.
SECTION 10. Voting of Shares in the Name of Two or More Persons. When
---------- ---------------------------------------------------
ownership of this savings bank's shares stands in the name of two or more
persons, in the absence of written directions to this savings bank to the
contrary, at any meeting of this savings bank's shareholders any one or more of
those shareholders may cast, in person or by proxy, all votes to which that
ownership is entitled. If an attempt is made to cast conflicting votes, in
person or by proxy, by the several persons in whose names those shares stand,
the vote or votes to which those persons are entitled shall be cast as directed
by a majority of those holding those shares directed and present in person or by
proxy at that meeting, but no votes shall be cast for those shares if a majority
cannot so agree.
SECTION 11. Voting of Shares by Certain Holders. Shares standing in the
---------- -----------------------------------
name of another corporation may be voted by any officer, agent or proxy, as the
bylaws of that corporation may prescribe or, in the absence of such provision,
as the Board of Directors of that corporation may determine. Shares held by an
administrator, executor, guardian or conservator may be voted by him or her,
either in person or by proxy, without a transfer of those shares into his or her
name. Shares standing in the name of a trustee may be voted by him or her,
either in person or by proxy, but no trustee shall be entitled to vote shares
held by him or her without a transfer of those shares into his or her name.
Shares standing in the name of a receiver may be voted by that receiver, and
shares held by or under the control of a receiver may be voted by the receiver
without the transfer into his or her name if authority to do so is contained in
an appropriate order of the court or other public authority by which the
receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote those
shares until the shares have been transferred into the pledgee's name.
Thereafter, the pledgee shall be entitled to vote the shares so transferred.
Neither treasury shares of this savings bank's own stock held by this
savings bank, nor shares of this savings bank's stock held by another
corporation if a majority of the shares entitled to vote for the election of
directors of such other corporation are held by this savings bank, shall be
voted at any shareholders' meeting or counted in determining the total number of
outstanding shares at any given time for purposes of any shareholders' meeting.
SECTION 12. No Cumulative Voting. The shares of this savings bank's
---------- --------------------
common stock shall not be entitled to cumulative voting.
<PAGE>
SECTION 13. Inspectors of Election. In advance of any shareholders?
---------- ----------------------
meeting, the Board of Directors may appoint any person other than nominees for
office as inspectors of election to act at that meeting or at any adjournment
thereof. The number of inspectors shall be either one or three. Any such
appointment shall not be altered at the meeting. If inspectors of election are
not so appointed, the Chairman of the Board or the President may make that
appointment at the meeting. If appointed at the meeting, the majority of the
votes present shall determine whether one or three inspectors will be appointed.
If any person appointed as inspector does not appear or fails or refuses to act,
the vacancy may be filled by appointment by the Board of Directors in advance of
the meeting or at the meeting by the Chairman of the Board or the President.
Unless otherwise prescribed by OTS regulations, the inspection duties shall
include determining the number of shares, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect of proxies,
receiving votes, ballots or consents, hearing and determining all challenges and
questions arising in connection with the right to vote, counting and tabulating
all votes or consents, determining the result and other actions which may be
proper to conduct the election or the vote with fairness to all shareholders.
SECTION 14. Nominating Committee. The Board of Directors shall act as a
---------- --------------------
nominating committee for selecting management?s nominees for election as
directors. Except in the case of a nominee substituted as a result of the death
or other incapacity of a management nominee, the nominating committee shall
deliver written nominations to the Secretary at least 20 days prior tot he date
of the annual shareholders? meeting. No nominations for directors except those
made by the nominating committee shall be voted upon at the annual shareholders?
meeting unless other nominations by shareholders are made in writing and
delivered to the Secretary at least five days prior to the date of the annual
meeting. Ballots bearing the names of all persons nominated by the nominating
committee and by shareholders shall be provided for use at the annual
shareholders? meeting. However, if the nominating committee fails or refuses
to act at least 20 days prior to the annual shareholders? meeting, nominations
for directors may be made at the annual meeting by any shareholder entitled to
vote and shall be voted upon.
SECTION 15. New Business. Any new business to be taken up at the annual
---------- ------------
shareholders? meeting shall be stated in writing and filed with the Secretary at
least five days before the annual shareholders? meeting. All business so
stated, proposed and filed shall be considered at the annual shareholders'
meeting, but no other proposal shall be acted upon at that meeting. Any
shareholder may make any other proposal at the annual shareholders' meeting and
the same may be discussed and considered, but unless stated in writing and filed
with the Secretary at least five days before the meeting, that proposal shall be
laid over for action at an adjourned, special or annual shareholders' meeting
taking place 30 days or more thereafter. This provision shall not prevent the
consideration and approval or disapproval at the annual shareholders' meeting of
reports of officers, directors and committees, but in connection with those
reports, no new business shall be acted upon at that annual meeting
<PAGE>
unless stated and filed as provided herein.
SECTION 16. Informal Action by Shareholders. Any action required to be
---------- -------------------------------
taken at a shareholders? meeting, or any other action which may be taken at a
shareholders? meeting, may be taken without a meeting if consent in writing,
setting forth the action so taken, is given by all shareholders entitled to vote
with respect to the subject matter.
ARTICLE III
Board of Directors
------------------
SECTION 1. General Powers. The Business and affairs of this savings bank
--------- --------------
shall be under the direction of its Board of Directors. The Board of Directors
shall elect a Chairman of the Board and a President from among its members
annually, and shall designate, when present, either the Chairman of the Board or
the President to preside at its meetings.
SECTION 2. Number and Team. The Board of Directors shall consist of six
--------- ---------------
members. Each shall be elected annually for a one-year term and until his or
her successor is duly elected and qualified.
SECTION 3. Regular Meetings. A regular meeting of the Board of Directors
--------- ----------------
shall be held without other notice than this Bylaw immediately after, and at the
same place, as the annual shareholders? meeting. The Board of Directors may, by
resolution, provide the time and place to hold additional regular meetings
without notice other than that resolution.
SECTION 4. Special Meetings. Special meetings of the Board of Directors
--------- ----------------
may be called by or at the request of the Chairman of the Board, the President
or one-third of the directors. The persons authorized to call special meetings
of the Board of Directors may fix any place as the place for holding any special
meeting of the Board of Directors called by those persons.
Members of the Board of Directors may participate in meetings by conference
telephone or similar communications equipment by which all persons participating
in the meeting can hear each other. That participation shall constitute
presence in person, but shall not constitute attendance for purpose of
entitlement to compensation pursuant to Section 11 of this Article.
SECTION 5. Notice. Written notice of any special meeting of directors
--------- ------
shall be given to each director at least two days prior thereto when delivered
personally or by telegram or at least five days prior thereto when delivered by
mail at the address at which the director is most likely to be reached. That
notice shall be deemed to be delivered when deposited in the mail so addressed,
with postage prepaid if mailed or when delivered to the telegraph company if
sent by telegram. Any director may waive notice of any meeting by a writing
filed with the
<PAGE>
Secretary. The attendance of a director at a meeting shall
constitute a waiver of notice of that meeting, unless a director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any meeting of the Board of Directors need
to be specified in the notice or waiver of notice of the meeting.
SECTION 6. Quorum. A majority of the number of directors fixed by Section
--------- ------
2 of this Article III shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors. However, if less than a majority is
present at that meeting, a majority of the directors present may adjourn the
meeting from time to time. Notice of any adjourned meeting shall be given in the
same manner as prescribed by Section 5 of this Article III.
SECTION 7. Manner of Acting. The act of a majority of the directors
--------- ----------------
present at a duly convened meeting at which a quorum is present shall be the act
of the Board of Directors, unless a greater number is prescribed by the OTS or
these Bylaws.
SECTION 8. Action Without a Meeting. Any action required or permitted to
---------- ------------------------
be taken by the Board of Directors at a meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by all of
the directors.
SECTION 9. Resignation. Any director may resign at any time by sending a
--------- -----------
written notice of his or her resignation to this savings bank?s home office
addressed to the Chairman of the Board or the President. Unless specified
otherwise, that resignation shall take effect upon receipt by the Chairman of
the Board or the President, as the case may be.
SECTION 10. Vacancies. Any vacancy on the Board of Directors may be
---------- ---------
filled by the affirmative vote of a majority of the remaining directors although
less than a quorum. A director elected to fill a vacancy shall be elected to
serve until the next election of directors by this savings bank?s shareholders.
Any directorship to be filled due to an increase in the number of directors may
be filled by the Board of Directors for a term continuing only until the next
election of directors by this savings bank?s shareholders.
SECTION 11. Compensation. Directors may receive compensation for their
---------- ------------
services. By resolution of the Board of Directors, a reasonable fixed sum, and
reasonable expenses of attendance, if any, may be allowed for actual attendance
at each regular or special meeting of the Board of Directors. Members of either
standing or special committees may be allowed compensation for actual attendance
at committee meetings as the Board of Directors may determine from time to time.
SECTION 12. Presumption of Assent. director of this savings bank who is
---------- ---------------------
present at a meeting of the Board of Directors at which action on any matter is
taken shall be presumed to have assented to the action taken unless his or her
dissent or abstention is entered into the minutes of the meeting or unless he or
she files a written dissent to that action with the person
<PAGE>
acting as the secretary of the meeting before the adjournment thereof or
forwards that dissent by registered mail to the Secretary within five days after
he or she receives a copy of the minutes of the meeting. That right to dissent
shall not apply to a director who voted in favor of the action.
SECTION 13. Removal of Directors. At a meeting of this savings bank?s
---------- --------------------
shareholders called expressly for that purpose, any director may be removed for
cause by a vote of the holders of a majority of the shares than entitled to vote
at an election of directors.
ARTICLE IV
Executive and Other Committees
------------------------------
SECTION 1. Appointment. The Board of Directors may, by resolution adopted
--------- -----------
by a majority of the entire Board of Directors, designate the Chief Executive
Officer and two or more other directors as an Executive Committee. The
designation of any committee pursuant to this Article IV and the delegation of
authority shall not relieve the Board of Directors, or any director, of any
responsibility imposed by law or regulation.
SECTION 2. Authority. When the Board of Directors is not in session, the
--------- ---------
Executive Committee shall have and may exercise all authority of the Board of
Directors except to the extent, if any, that that authority is limited by the
resolution appointing the Executive Committee and except that the Executive
Committee shall not have the authority of the Board of Directors with respect to
declaring dividends, amending this savings bank?s charter or Bylaws,
recommending to this savings bank?s stockholders a plan of merger, consolidation
or conversion, the sale, lease or other disposition of all or substantially all
of the savings bank?s property or assets other than in the ordinary and usual
course of business, a voluntary dissolution of this savings bank, a revocation
of any of the foregoing or the approval of a transaction in which any member of
the Executive Committee directly or indirectly has any material beneficial
interest.
SECTION 3. Tenure. Subject to the provisions of Section 8 of this Article
--------- ------
IV, each member of the Executive Committee shall hold office until the next
regular annual meeting of the Board of Directors following his or her
appointment and until his or her successor is designated as a member of the
Executive Committee.
SECTION 4. Meetings. Regular meetings of the Executive Committee may be
--------- --------
held without notice at such times and places as the Executive Committee may fix
by resolution from time to time. Special meetings of the Executive Committee
may be called by any member thereof upon not less than one day?s notice stating
the place, date and hour of the meeting. That notice may be written or oral.
Any member of the Executive Committee may waive notice of any meeting, and no
notice of any meeting need to be given to any member thereof who attends the
meeting in person. Notice of a meeting of the Executive Committee need not
<PAGE>
state the business proposed to be transacted thereat.
SECTION 5. Quorum. A majority of the members of the Executive Committee
--------- ------
shall constitute a quorum for the transaction of business at any meeting
thereof. Action of the Executive Committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum thereof is present.
SECTION 6. Action Without a Meeting. Any action required or permitted to
--------- ------------------------
be taken by the Executive Committee at a meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by all of
the Committee?s members.
SECTION 7. Vacancies. Any vacancy in the Executive Committee may be
--------- ---------
filled by a resolution adopted by a majority of the entire Board of Directors.
SECTION 8. Resignation and Removal. Any member of the Executive Committee
--------- -----------------------
may be removed at any time, with or without cause, by a resolution adopted by a
majority of the entire Board of Directors. Any member of the Executive
Committee may resign from the Committee at any time by giving written notice to
the President or the Secretary. Unless specified otherwise, that resignation
shall take effect upon its receipt.
SECTION 9. Procedure. The Executive Committee shall elect a chairman from
--------- ---------
among its members and may fix its own rules of procedure. Those rules may not
be inconsistent with these Bylaws. The committee shall keep regular minutes of
its proceedings, and shall report those minutes to the Board of Directors for
its information at the meeting of the Board of Directors held next after the
Committee's proceedings occur.
SECTION 10. Other Committees. The Board of Directors may, by resolution,
---------- ----------------
establish an audit, loan or other committee composed of directors as the
directors determine to be necessary or appropriate for the conduct of this
savings bank?s business, and may prescribe the duties, constitution and
procedures thereof.
ARTICLE V
Officers
--------
SECTION 1. Positions. This savings bank?s officers shall be a Chairman of
--------- ---------
the Board, a President, one or more Vice Presidents, a Secretary and a
Treasurer. Each of those officers shall be elected by the Board of Directors.
The Board of Directors may also designate the Chairman of the Board as an
officer. The President shall be the Chief Executive Officer, unless the Board
of Directors designates the Chairman of the Board as the Chief Executive
Officer. The President shall be a director of this savings bank. Any
individual may hold more than one office. The Board of Directors may designate
one or more Vice Presidents as Executive Vice President or Senior Vice
President. The Board of Directors also may elect or
<PAGE>
authorize the appointment of other officers as it deems appropriate. The
officers shall have authority and perform duties as the Board of Directors may
authorize from time to time. In the absence of action by the Board of Directors,
this savings bank's officers shall have such powers and duties as pertain to
their respective offices generally.
SECTION 2. Election and Term of Office. This savings bank?s officers
--------- ---------------------------
shall be elected annually at the first meeting of the Board of Directors held
after each annual meeting of this savings bank's shareholders. If the election
of officers is not held at that meeting, that election shall be held as soon
thereafter as possible. Each officer shall hold office until a successor has
been duly elected and qualified or until the officer?s death, resignation or
removal in the manner provided herein. Election or appointment of an officer,
employee or agent shall not of itself create contractual rights. The Board of
Directors may authorize this savings bank to enter into an employment agreement
with any officer subject to OTS regulations. Notwithstanding the preceding
sentence, no such agreement shall impair the Board of Directors? right to remove
any officer at any time in accordance with Section 3 of this Article V.
SECTION 3. Removal. Any officer may be removed by the Board of Directors
--------- -------
whenever in its judgment the best interests of this savings bank would be served
thereby. That removal, other than for cause, shall be without prejudice to the
contractual rights of the person so removed, if any.
SECTION 4. Vacancies. A vacancy in any office because of death,
--------- ---------
resignation, removal, disqualification or otherwise may be filled by the Board
of Directors for the unexpired portion of the term thereof.
SECTION 5. Remuneration. The remuneration of this savings bank?s
--------- ------------
officers, if any, shall be fixed by the Board of Directors from time to time.
ARTICLE VI
Contracts, Checks and Deposits
------------------------------
SECTION 1. Contracts. To the extent permitted by OTS regulations, and
--------- ---------
except as prescribed otherwise by these Bylaws with respect to share
certificates, the Board of Directors may authorize any of this savings bank?s
officers, employees or agents to enter into any contract or to execute and
deliver any instrument in this savings bank?s name and on its behalf. That
authority may be general or confined to a specific instance.
SECTION 2. Checks; Drafts, etc. All checks, drafts or other orders for
--------- --------------------
the payment of money, notes or other evidences of indebtedness issued in this
savings bank's name shall be signed by one or more officers, employees or agents
in the manner determined by the Board of Directors from time to time.
<PAGE>
SECTION 3. Deposits. All funds of this savings bank not otherwise
--------- --------
utilized shall be deposited to this savings bank's credit from time to time in
any duly authorized depository(ies) which the Board of Directors selects.
ARTICLE VII
Certificates for Shares and Their Transfer
------------------------------------------
SECTION 1. Certificates for Shares. Certificates representing shares of
--------- -----------------------
this savings bank's capital stock shall be in a form determined by the Board of
Directors. Those certificates shall be signed by the Chief Executive Officer or
any other officer the Board of Directors authorizes, attested by the Secretary
or an Assistant Secretary, and sealed with the corporate seal or a facsimile
thereof. The signatures of those officers upon any certificate may be
facsimiles. Each certificate for shares of this savings bank's capital stock
shall be numbered consecutively or otherwise identified. The name and address
of the person to whom the shares are issued, with the number of shares and the
date of their issue, shall be entered on this savings bank's stock transfer
books. All certificates surrendered to this savings bank for transfer shall be
cancelled and no new certificate shall be issued until the former certificate
for a like number of shares has been surrendered and cancelled. Notwithstanding
the preceding sentence, in the case of a lost or destroyed certificate, a new
certificate may be issued upon such terms and indemnity to this savings bank as
the Board of Directors may prescribe.
SECTION 2. Transfer of Shares. Transfers of shares of this savings bank's
--------- ------------------
capital stock shall be made only on this savings bank's stock transfer books.
Authority for each transfer shall be given only by the holder of record, his or
her legal representative (who must furnish proper evidence of that authority),
or his or her attorney authorized by a duly executed power of attorney and filed
with the Secretary. Any such transfer shall be made only on surrender for
cancellation of the certificate for those shares. The person in whose name
shares of capital stock stand on this savings bank's books shall be deemed by
this savings bank to be the owner thereof for all purposes.
ARTICLE VIII
Fiscal Year
-----------
This savings bank's fiscal year shall end on December 31 each year.
ARTICLE IX
Dividends
---------
Subject to the terms of this savings bank's charter and OTS regulations,
the Board of
<PAGE>
Directors may declare, and this savings bank may pay, dividends on its
outstanding shares of capital stock from time to time.
ARTICLE X
Corporate Seal
--------------
The Board of Directors shall approve this savings bank's seal. That seal
shall consist of two concentric circles, between which shall be this savings
bank's name. The year of incorporation or an emblem may appear in the center
thereof.
ARTICLE XI
Amendments
----------
These Bylaws may be amended in a manner consistent with OTS regulations at
any time by a majority vote of the Board of Directors or by a majority vote of
the votes cast by this savings bank's shareholders at any duly convened meeting
thereof.
<PAGE>
WHEREAS, the Board of Directors desires to amend this savings bank's Bylaws in
certain respects;
NOW, THEREFORE, BE IT RESOLVED, that Article III, Section 1 of this savings
bank's Bylaws be amended to read in its entirety as follows:
SECTION 1. General Powers. The business and affairs of this savings bank
--------------
shall be under the direction of its Board of Directors. The Board of
Directors shall annually elect a chairman of the board and one or more
presidents from among its members and shall designate, when present, either
the chairman of the board or one of the presidents to preside at its
meetings.
FURTHER RESOLVED, that Article III, Section 2 of this savings bank's Bylaws be
amended to read in its entirety as follows:
SECTION 2. Number and Term. The Board of Directors shall consist of not
---------------
less than five nor more than fifteen members, the precise number of which
shall be fixed by resolution of the Board of Directors from time to time.
The directors shall be elected annually, and shall serve for the ensuing
year and until their respective successors are duly elected and qualified.
FURTHER RESOLVED, that Article III, Section 3 of this savings bank's Bylaws be
amended to read in its entirety as follows:
SECTION 3. Regular and Special Meetings. Regular and special meetings of
----------------------------
the Board of Directors may be called by or at the request of the chairman
of the board, one of the presidents or one-third of the directors. The
persons authorized to call meetings of the Board of Directors may fix any
place as the place for that meeting.
Members of the Board of Directors may participate in regular or
special meetings by means of conference telephone or similar communications
equipment by which all persons participating in the meeting can hear each
other. Such participation shall constitute presence in person and, if the
Board of Directors so determines, shall constitute attendance for the
purpose of entitlement to compensation pursuant to Section 11 of this
Article.
FURTHER RESOLVED, that Article III, Section 5 of this savings bank's Bylaws be
deleted;
FURTHER RESOLVED, that Article III, Section 6 of this savings bank's Bylaws be
re-numbered Article III, Section 5;
FURTHER RESOLVED, that Article III, Section 7 of this savings bank's Bylaws be
re-numbered Article III, Section 6;
FURTHER RESOLVED, that Article III, Section 8 of this savings bank's Bylaws be
re-
<PAGE>
numbered Article III, Section 7;
FURTHER RESOLVED, that Article III, Section 9 of this savings bank's Bylaws be
re-numbered Article III, Section 8;
FURTHER RESOLVED, that Article III, Section 10 of this savings bank's Bylaws be
re-numbered Article III, Section 9;
FURTHER RESOLVED, that Article III, Section 11 of this savings bank's Bylaws be
re-numbered Article III, Section 10;
FURTHER RESOLVED, that Article III, Section 12 of this savings bank's Bylaws be
re-numbered Article III, Section 11, and amended to read in its entirety as
follows:
SECTION 11. Compensation. Directors, as such, may receive a stated salary
------------
for their services. By resolution of the Board of Directors, a reasonable
fixed sum, and reasonable expenses of attendance, if any, may be allowed
for attendance, whether in person or by telephone, at any regular or
special meeting of the Board of Directors. Members of either standing or
special committees may be allowed such compensation for attendance, whether
in person or by telephone, at committee meetings as the Board of Directors
may determine from time to time.
FURTHER RESOLVED, that Article III, Section 13 of this savings bank's Bylaws be
re-numbered Article III, Section 12;
FURTHER RESOLVED, that Article III, Section 14 of this savings bank's Bylaws be
re-numbered Article III, Section 13;
FURTHER RESOLVED, that Article V, Section 1 of this savings bank's Bylaws be
amended to read in its entirety as follows:
SECTION 1. Positions. The officers of this savings bank shall be one or
---------
more presidents, one or more vice presidents, a secretary, and a treasurer,
each of whom shall be elected by the Board of Directors. The Board of
Directors may also designate the chairman of the board as an officer. One
of the presidents shall be the chief executive officer, unless the Board of
Directors designates the chairman of the board as chief executive officer.
The president(s) shall be director(s) of this savings bank. The offices of
the secretary and treasurer may be held by the same person and a vice
president may also be either the secretary or the treasurer. The Board of
Directors may designate one or more vice presidents as executive vice
presidents or senior vice president. The Board of Directors may also elect
or authorize the appointment of such other officers as
<PAGE>
the business of this savings bank may require. The officers shall have such
authority and perform such duties as the Board of Directors may from time
to time authorize or determine. In the absence of action by the Board of
Directors, the officers shall have such powers and duties as generally
pertain to their respective offices; and
FURTHER RESOLVED, that Article VIII of this savings bank's Bylaws hereby is
amended to read in its entirety as follows:
ARTICLE VIII - FISCAL YEAR
The fiscal year of this savings bank shall end on the 31st day of December of
each year.
FURTHER RESOLVED, that all actions previously taken by and on behalf of this
savings bank by any person in connection with the transactions contemplated by
the foregoing resolutions hereby are ratified, confirmed and approved in all
respects.
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust FSB hereby consents that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST FSB
Dated: March 24, 1999 By: /s/ Howard K. Cohen
---------------------------
Name: Howard K. Cohen
Title: Vice President
<PAGE>
EXHIBIT D
REPORT OF CONDITION
WILMINGTON TRUST FSB of SALISBURY
- ------------------------------------ -----------------
Name of Bank City
in the State of Maryland , at the close of business on December 31, 1998.
------------
<TABLE>
<S> <C>
ASSETS
Thousands of dollars
Cash, Deposits and Investment Securities:............................................... 22,053
Mortgage Pool Securities:............................................................... 5,048
Mortgage Loans:......................................................................... 33,801
Nonmortgage Loans:...................................................................... 17,628
Commercial Loans:................................ 7,105
Consumer Loans:.................................. 10,776
Repossessed Assets:..................................................................... 41
Office Premises and Equipment .......................................................... 2,746
Other Assets:........................................................................... 2,921
Total Assets:........................................................................... 84,238
LIABILITIES
Deposits:............................................................................... 72,935
Escrows................................................................................. 66
Unamortized Yield Adjustments on Deposits............................................... 0
Borrowings:............................................................................. 0
Other Liabilities:...................................................................... 1,302
Total Liabilities:...................................................................... 74,303
EQUITY CAPITAL
Perpetual preferred stock:.............................................................. 0
Common Stock:
Par Value.......................................................................... 1,500
Paid in Excess of Par.............................................................. 6,000
Unrealized gains (losses) on available-for-sale securities.............................. 33
Retained Earnings....................................................................... 2,402
Other Components of Equity Capital...................................................... 0
Total Equity Capital.................................................................... 9,935
Total Liabilities, Redeemable Preferred Stock, Minority Interest and Equity Capital..... 84,238
</TABLE>
