SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
JANUARY 31, 1994
Date of Report (Date of earliest event reported)
SOUTHERN UNION COMPANY
(Exact name of registrant as specified in charter)
DELAWARE 1-6407 75-0571592
(State of (Commission (IRS Employer
incorporation File Number) Identification
Number)
504 LAVACA STREET, EIGHTH FLOOR, AUSTIN, TEXAS 78701
(Address of principal executive offices including zip
code)
(512) 477-5981
Registrant's telephone number, including area code
Not applicable
(Former name or address, if changed since last report)
Item 2. Acquisition or Disposition of Assets
As described in the Press Release attached hereto as Exhibit
99.1, the Registrant and Western Resources, Inc. have completed
the Registrant's purchase from Western Resources of the Missouri
gas distribution operations serving approximately 460,000
customers in western and central Missouri pursuant to the
Agreement for Purchase of Assets. The approximately $400 million
acquisition was funded through the Registrant's previously
disclosed $50 million subscription rights offering of Common
Stock completed in December 1993 and the sale of $475 million of
7.60% Senior Notes due 2024. The closing for the sale of the
7.60% Senior Notes occurred concurrently with the acquisition.
The net proceeds from the sale of the 7.60% Senior Notes,
together with the net proceeds from the Rights Offering and funds
generated from operations, have been or will be used to (i) fund
the Missouri acquisition, (ii) refinance the $20 million
aggregate principal amount of the Registrant's 10 1/8% Notes due
May 15, 1994, (iii) repay approximately $59.3 million of
borrowings under the Registrant's $100 million revolving credit
facility, which borrowings were used to fund the acquisition of
the Rio Grande Valley Gas Company and repurchase all of the
Registrant's outstanding preferred stock, (iv) refinance the $10
million aggregate principal amount of the Registrant's 9.45%
Senior Notes due January 31, 2004 and the $25 million aggregate
principal amount of the Registrant's 10% Senior Notes due January
31, 2012, including the related premiums of $10.4 million
resulting from the early extinguishment of such Senior Notes and
(v) refinance the $50 million aggregate principal amount of the
Registrant's 10.5% Sinking Fund Debentures due May 15, 2017 and
the premium of $3.3 million resulting from the early
extinguishment of such Debentures.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(a) Financial Statements of the Business Acquired
Missouri Business of Gas Service:
Audited Financial Statements:
Report of Independent Accountants
Balance Sheet at December 31, 1992 and 1991
Statement of Operations for the years ended
December 31, 1992, 1991 and 1990
Notes to Financial Statements
Unaudited Interim Financial Statements:
Balance Sheet at September 30,1993
Statement of Operations for the nine months
ended September 30, 1993 and 1992
Notes to Unaudited Interim Financial
Statements
(b) Pro Forma Financial Information
Unaudited Pro Forma Combined Condensed Financial
Statements:
Unaudited Pro Forma Combined Condensed
Financial Information
Pro Forma Combined Condensed Statement of Operations
for the nine months ended September 30, 1993
Pro Forma Combined Condensed Statement of Operations
for the twelve months ended September 30, 1993
Pro Forma Combined Condensed Statement of Operations
for the year ended December 31, 1992
Notes to Unaudited Pro Forma Combined Condensed
Statements of Operations
Pro Forma Combined Condensed Balance Sheet
at September 30, 1993
Notes to Unaudited Pro Forma Combined Condensed
Balance Sheet
(c) Exhibits
4.1 Indenture between The Chase Manhattan Bank (National
Association),
as trustee, and Southern Union Company dated January 31,
1994.
4.2 Officers' Certificate dated January 31, 1994 setting forth
the
terms of the 7.60% Senior Notes due 2024.
99.1 Press Release dated January 31, 1994.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Dated: February 15, 1994 SOUTHERN UNION COMPANY
By: \s\David J. Kvapil
Vice President and Controller
(Chief Accounting Officer)
<PAGE>
Exhibit 4.1
INDENTURE
INDENTURE, dated as of January 31, 1994, between Southern Union
Company, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company") having its
principal office at 504 Lavaca Street, Eighth Floor, Austin, Texas
78701, and The Chase Manhattan Bank (National Association), a
national banking association duly organized and existing under the
laws of the United States, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more
series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions.
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 any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper", as used in TIA Section
311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the
date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined
in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"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" of any specified Person
means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any specified lease under
which any Person is at the time liable for a term of more than 12
months, at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining term thereof
(excluding any subsequent renewal or other extension options held
by the lessee), discounted from the respective due dates thereof to
such date at a rate equal to the weighted average of the interest
rates borne by the Outstanding Securities, compounded monthly. The
net amount of rent required to be paid under any such lease for any
such period shall be the aggregate amount of the rent payable by
the lessee with respect to such period after excluding any amounts
required to be paid on account of maintenance and repairs,
services, insurance, taxes, assessments, water rates and similar
charges and contingent rents (such as those based on sales). In
the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount of rent shall include the
lesser of (i) the total discounted net amount of rent required to
be paid from the later of the first date upon which such lease may
be so terminated or the date of the determination of such net
amount of rent, as the case may be, and (ii) the amount of such
penalty (in which event no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it
may be so terminated).
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used
or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, such
publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bank Credit Facility" means the revolving credit facility
dated September 30, 1993, as amended on November 15, 1993, between
the Company and the Banks as in effect on the date hereof and as
such Facility may be amended, restated, refinanced, supplemented or
otherwise modified from time to time.
"Banks" means the lenders from time to time who are parties to
the Bank Credit Facility.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee 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, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or
in the Securities, means, unless otherwise specified with respect
to any Securities pursuant to Section 301, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"CEDEL S.A." means Cedel, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, its
President, any Vice President, its Treasurer or an Assistant
Treasurer, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of
assets (less applicable reserves and other properly deductible
items) of the Company and its consolidated Subsidiaries after
deducting therefrom (i) all current liabilities (excluding any
current liabilities which are by their terms extendible or
renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being
computed) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles,
all as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Consolidated Net Worth" means the sum of stockholder's equity,
preferred stock and minority interests as set forth in the
Company's consolidated financial statements.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or
within the international banking community for the settlement of
transactions, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which
it was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office on the date of
execution of this Indenture is located at 4 Chase MetroTech Center,
Brooklyn, New York 11245, except that with respect to presentation
of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corporate agency business
shall be conducted.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation,
the ECU, issued by the government of one or more countries or by
any recognized confederation or association of such governments.
"Debt" means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 312(f).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear
System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic
Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any
Securities pursuant to Section 301, a New York Clearing House bank,
designated pursuant to Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or
a certificate setting forth (i) the applicable Market Exchange Rate
and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on
the basis of a Security having the lowest denomination principal
amount determined in accordance with Section 302 in the relevant
Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex)
or signed (in the case of a certificate) by the Treasurer, any Vice
President or any Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of
the United States.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301,
securities which are (i) direct obligations of the government which
issued the Currency in which the Securities of a particular series
are payable or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
government which issued the Currency in which the Securities of
such series are payable, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full
faith and credit obligations of such government payable in such
Currency and are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of
interest or principal of the Government Obligation evidenced by
such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer thereof
and, when used with respect to any coupon, shall mean the bearer
thereof.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of
any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was
not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original
issuance.
"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 at the rate
prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or
security interest.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any
conversion involving a currency unit on the one hand and Dollars or
any Foreign Currency on the other, the exchange rate between the
relevant currency unit and Dollars or such Foreign Currency
calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon (New York City time)
buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal
Reserve Bank of New York and (iii) for any conversion of one
Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from
major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in
each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301,
in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another
principal market for the Currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any Currency by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident
issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the
Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required
by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that
would be (or shall have been declared to be) due and payable, at
the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal
amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that
shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate
Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (i) above), of such
Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that
shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which 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 such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of
(or premium, if any, on) or interest on any Securities on behalf of
the Company.
"Permitted Liens" means Liens permitted by Section 1009.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the
principal of (and premium, if any, on) and interest on such
Securities are payable as specified as contemplated by Sections 301
and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by
Section 301.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is
to be repaid pursuant to this Indenture.
"Responsible 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, or any vice president, secretary, any assistant
secretary, treasurer, any assistant treasurer, cashier, any
assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller within the corporate
trust administration division 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.
"Restricted Securities" has the meaning specified in Section
1009.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; provided,
however, that if at any time there is more than one Person acting
as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning
stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the
date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal of
such Security or such installment of principal or interest is due
and payable, as such date may be extended pursuant to the
provisions of Section 308.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one
or more Subsidiaries, owns 50% or more of the shares of Voting
Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean only the
Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of
America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual
who is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the
laws of the United States or an estate or trust the income of which
is subject to United States federal income taxation regardless of
its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least
a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most
recent redetermination of interest on such Security) and as set
forth in such Security in accordance with generally accepted United
States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
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 (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than
pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities
of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall
be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by any Person,
and the date of holding the same, may also be proved in any other
manner which the Trustee deems sufficient.
(e) 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. Notwithstanding TIA Section 316(c), such record date shall be
the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith
and not later than the date such solicitation is completed. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted
by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as
provided. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impractical to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice
as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given to
Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and in such other city or cities
as may be specified in such Securities on a Business Day at least
twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for
the giving of such notice. Any such notice shall be deemed to have
been given on the date of the first such publication.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given with
the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall
affect the sufficiency of such notice with respect to other Holders
of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
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.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the
parties hereto, any Authenticating Agent, any Paying Agent, any
Securities Registrar and their successors hereunder and the Holders
of Securities or coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST
INDENTURE ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF
THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY
SUCH PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity or Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than
a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)
payment of 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 or Maturity; provided
that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall
be in substantially the forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities or coupons, as evidenced
by their execution of the Securities or coupons. If the forms of
Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities or coupons.
Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face
of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be
produced in any other manner, all as determined by the officers of
the Company executing such Securities, as evidenced by their
execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Trustee
By
Authorized Officer
<PAGE>
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301, any such Security shall
represent such of the Outstanding Securities of such series as
shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from
time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or
any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or Section 304 has been,
or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of
and any premium and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the Holder
of such principal amount of Outstanding Securities represented by
a permanent global Security (i) in the case of a permanent global
Security in registered form, the Holder of such permanent global
Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions and, subject
to Section 303, set forth in, or determined in the manner provided
in, an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities
of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and
(17) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series and
set forth in such Securities of the series when issued from time to
time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of
the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which such
interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date or
dates shall be determined, and the basis upon which interest
shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any, on) and any interest on
Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for
exchange and, if different than the location specified in
Section 106, the place or places where notices or demands to or
upon the Company in respect of the Securities of the series and
this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency in which, and other terms and conditions
upon which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to
have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price or
prices at which, the Currency in which, and other terms and
conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which
any Registered Securities of the series shall be issuable and,
if other than the denomination of $5,000, the denomination or
denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the method by which
such portion shall be determined;
(11) if other than Dollars, the Currency in which payment
of the principal of (and premium, if any, on) or interest, if
any, on the Securities of the series shall be payable or in
which the Securities of the series shall be denominated and the
particular provisions applicable thereto in accordance with, in
addition to or in lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (and
premium, if any, on) or interest on the Securities of the
series may be determined with reference to an index, formula or
other method (which index, formula or method may be based,
without limitation, on one or more Currencies, commodities,
equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium, if any, on)
and interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in
a Currency other than that in which such Securities are
denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the
Currency in which such Securities are denominated or stated to
be payable and the Currency in which such Securities are to be
so payable, in each case in accordance with, in addition to or
in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent,
if any;
(15) any provisions in modification of, in addition to or
in lieu of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(17) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect
to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(18) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities, whether any Securities
of the series are to be issuable initially in temporary global
form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and,
if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided
in Section 305, whether Registered Securities of the series may
be exchanged for Bearer Securities of the series (if permitted
by applicable laws and regulations), whether Bearer Securities
of the series may be exchanged for Registered Securities of the
series, and the circumstances under which and the place or
places where such exchanges may be made and if Securities of
the series are to be issuable in global form, the identity of
any initial depository therefor;
(19) the date as of which any Bearer Securities of the
series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of the
series to be issued;
(20) 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 304;
(21) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange
of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, the form and/or terms of such certificates,
documents or conditions;
(22) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1005 on
the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts
(and the terms of any such option);
(23) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person
(including the Company), the terms and conditions upon which
such Securities will be so convertible or exchangeable; and
(24) any other terms, conditions, rights and preferences
(or limitations on such rights and preferences) relating to the
series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of
this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant
to such Board Resolution (subject to Section 303) and set forth in
such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the
same time, and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the
Secretary or an Assistant Secretary of the Company and such Board
Resolutions shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of
the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301.
With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions, the Registered Securities of
such series, other than Registered Securities issued in global form
(which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities
issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or
a Vice President, under its corporate seal reproduced thereon
attested by its Secretary or an Assistant Secretary. The signature
of any of these officers on the Securities or coupons may be the
manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on
the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series together with any coupon appertaining thereto, executed
by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that, unless otherwise
specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form set
forth in Exhibit A-1 to this Indenture, dated no earlier than 15
days prior to the earlier of the date on which such Bearer Security
is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by
Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled. If not all the
Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as
interest rate, maturity date, date of issuance and date from which
interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture;
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute the legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities, any
coupons and of the supplemental indentures, if any, have been
complied with and that authentication and delivery of such
Securities and any coupons and the execution and delivery of
the supplemental indenture, if any, by the Trustee will not
violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons
will not contravene the articles of incorporation or by-laws of
the Company or result in any violation of any of the terms or
provisions of any law or regulation or of any indenture,
mortgage or other agreement known to such Counsel by which the
Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series
are to be issued at one time, it shall not be necessary to deliver
the Officers' Certificate otherwise required pursuant to Section
301 or the Company Order and Opinion of Counsel otherwise required
pursuant to the preceding two paragraphs prior to or at the time of
issuance of each Security, but such documents shall be delivered
prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication, and each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310
together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. Such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the
following paragraphs), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation
of definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities of
such series, upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations;
provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so
exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary
or common depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange
Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such
temporary 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, permanent global bearer form or
permanent global registered form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in
such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed
by CEDEL S.A. as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as
may be established pursuant to Section 301); and provided, further,
that definitive Bearer Securities shall be delivered in exchange
for a portion of a temporary global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the
Exchange Date when the account holder instructs Euroclear or CEDEL
S.A., as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture
(or in such other form as may be established pursuant to Section
301), dated no earlier than 15 days prior to the Exchange Date,
copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent.
Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners
of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not
take delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL S.A. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the
same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated
by Section 301, interest payable on a temporary global Security on
an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL S.A. on such Interest Payment Date upon delivery by
Euroclear and CEDEL S.A. to the Trustee of a certificate or
certificates in the form set forth in Exhibit A-2 to this Indenture
(or in such other form as may be established pursuant to Section
301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or
CEDEL S.A., as the case may be, a certificate dated no earlier than
15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section
303 of this Indenture and the interests of the Persons who are the
beneficial owners of the temporary global Security with respect to
which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange
Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no
payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security.
Any interest so received by Euroclear and CEDEL S.A. 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 1003.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register for each series of Securities (the
registers maintained in the Corporate Trust Office of the Trustee
and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written
form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee
is hereby initially appointed as security registrar (the "Security
Registrar") for the purpose of registering Registered Securities
and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of
Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee, one or more new Registered Securities of the same
series, of 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 denomination and of a like aggregate
principal amount, upon surrender of the Registered Securities to be
exchanged at such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to
any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth
in the applicable Officers' Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at
the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of
a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such permitted
exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency
in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment
Date or proposed date for payment, as the case may be, and interest
or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial
owner of an interest in a permanent global Security is entitled to
exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and
provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such
permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common
Depositary or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that
no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to
be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those
selected for redemption; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in
the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
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 Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the
selection for redemption of Securities of that series under Section
1103 or 1203 and ending at the close of business on (A) if
Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption, or (ii) 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 (iii) to exchange any
Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that
series and like tenor; provided that such Registered Security shall
be simultaneously surrendered for redemption, or (iv) to issue,
register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, or, in case any such
mutilated Security or coupon has become or is about to become due
and payable, the Company in its discretion may, instead of issuing
a new Security, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, pay such Security or
coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon and (ii) such security or indemnity
as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and
upon Company Order the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange
for the Security for which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains,
or, in case any such destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains, pay such Security or
coupon.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security and its coupons, if any, or
the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any
Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to
the Person in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any
Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to
the address of such Person as it appears on the Security Register
or (ii) transfer to an account maintained by the payee located in
the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be
made, in the case of a Bearer Security, by transfer to an account
maintained by the payee with a bank located outside the United
States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security in bearer form will provide that
interest, if any, payable on any Interest Payment Date will be paid
to each of Euroclear and CEDEL S.A. with respect to that portion of
such permanent global Security held for its account by the Common
Depositary, for the purpose of permitting each of Euroclear and
CEDEL S.A. to credit the interest received by it in respect of such
permanent global Security to the accounts of the beneficial owners
thereof.
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 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 and, if applicable,
interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively
called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount
of money in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e))
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided in
Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in
whose name the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after 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.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The interest rate (or the
spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security
(each an "Optional Reset Date"). The Company may exercise such
option with respect to such Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Note. Not later than 40 days prior to
each Optional Reset Date, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of any such Security a
notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable),
and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the
next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such
period a "Subsequent Interest Period"), including the date or dates
on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) provided for in the Reset Notice
and establish an interest rate (or a spread or spread multiplier
used to calculate such interest rate, if applicable) that is higher
than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 106, notice of such higher interest rate
(or such higher spread or spread multiplier, if applicable) to the
Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to
which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender)
pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In
order to obtain repayment on an Optional Reset Date, the Holder
must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to such Optional Reset Date and except
that, if the Holder has tendered any Security for repayment
pursuant to the Reset Notice, the Holder may, by written notice to
the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Optional Extension of Stated Maturity.
The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified
pursuant to such Section 301). The Stated Maturity of any Security
of such series may be extended at the option of the Company for the
period or periods specified on the face of such Security (each an
"Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may
exercise such option with respect to any Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to
the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in
the manner provided for in Section 106, to the Holder of such
Security not later than 40 days prior to the Original Stated
Maturity a notice (the "Extension Notice") indicating (i) the
election of the Company to extend the Stated Maturity, (ii) the new
Stated Maturity, (iii) the interest rate applicable to the
Extension Period and (iv) the provisions, if any, for redemption
during such Extension Period. Upon the Trustee's transmittal of
the Extension Notice, the Stated Maturity of such Security shall be
extended automatically and, except as modified by the Extension
Notice and as described in the next paragraph, such Security will
have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at
its option, revoke the interest rate provided for in the Extension
Notice and establish a higher interest rate for the Extension
Period by causing the Trustee to transmit, in the manner provided
for in Section 106, notice of such higher interest rate to the
Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended
will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the
principal amount thereof, plus interest accrued to such date. In
order to obtain repayment on the Original Stated Maturity once the
Company has extended the Maturity thereof, the Holder must follow
the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than
35 days prior to the Original Stated Maturity and except that, if
the Holder has tendered any Security for repayment pursuant to an
Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. 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, on) and (subject to Sections 305 and 307) interest
on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and none of the Company, the Trustee
or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the bearer of any
Bearer Security and the bearer of any coupon as the absolute owner
of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security
or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund
payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee. All Securities and coupons so
delivered to the Trustee shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee.
If the Company shall so acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their
disposal delivered to the Company unless by Company Order the
Company shall direct that cancelled Securities be returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest, if any, on the Securities
of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the
Holders of which have not made the election provided for in
paragraph (b) below, and with respect to Bearer Securities of any
series, except as provided in paragraph (d) below, payment of the
principal of (and premium, if any, on) and interest, if any, on any
Registered or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 312
may be modified or superseded with respect to any Securities
pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (and premium, if any, on) or interest, if
any, on such Registered Securities in any of the Currencies which
may be designated for such election by delivering to the Trustee a
written election with signature guarantees and in the applicable
form established pursuant to Section 301, not later than the close
of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by
such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of
business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such
payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or
with respect to which the Company has deposited funds pursuant to
Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee).
Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close
of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as
provided in Section 312(a). The Trustee shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which
Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant
to Section 301, not later than the fourth Business Day after the
Election Date for each payment date for Registered Securities of
any series, the Exchange Rate Agent will deliver to the Company a
written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any, on) and interest, if
any, on the Registered Securities to be paid on such payment date,
specifying the amounts in such Currency so payable in respect of
the Registered Securities as to which the Holders of Registered
Securities of such series shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant
to Section 301 and if at least one Holder has made such election,
then, unless otherwise specified pursuant to Section 301, on the
second Business Day preceding such payment date the Company will
deliver to the Trustee for such series of Registered Securities an
Exchange Rate Officer's Certificate in respect of the Dollar or
Foreign Currency payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business Day
(the "Valuation Date") immediately preceding each payment date and
such determination shall be conclusive and binding for all
purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable
other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment
of principal of (and premium, if any, on) and interest, if any, on
the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign
Currency was used (the "Conversion Date"), the Dollar shall be the
Currency of payment for use on each such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to such
payment date shall be, in the case of a Foreign Currency other than
a currency unit, the Dollar Equivalent of the Foreign Currency or,
in the case of a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate
Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall
have elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with respect to
such elected Currency, such Holder shall receive payment in the
Currency in which payment would have been made in the absence of
such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of
such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for
each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions
of paragraph (h) below shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof
which were represented in the relevant currency unit,
including, but not limited to, the ECU, on the Conversion Date.
If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion
Date two or more Component Currencies are consolidated into a
single currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in
such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be
a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more currencies,
having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately
before such division and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the
relevant currency unit, including, but not limited to, the ECU,
a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to
any Component Currency of such currency unit and is continuing
on the applicable Valuation Date, the Specified Amount of such
Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13) of
Section 301 by which the written election referred to in
paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall be in its
sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated
or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any
such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency,
the Company will immediately give written notice thereof to the
Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion
Event has occurred with respect to the ECU or any other currency
unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee and to
the Exchange Rate Agent (and the Trustee will promptly thereafter
give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the
event the Company determines in good faith that any subsequent
change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee and the Exchange Rate Agent.
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 the accuracy or validity of such
information independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if
and so long as the Securities of any series (i) are denominated in
a Currency other than Dollars or (ii) may be payable in a Currency
other than Dollars, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange
Rate Agent to make the necessary foreign exchange determinations at
the time and in the manner specified pursuant to Section 301 for
the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued Currency into
the applicable payment Currency for the payment of principal (and
premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this
Section shall become effective until the acceptance of appointment
by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of the Exchange Rate Agent for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a
Board Resolution, shall promptly appoint a successor Exchange Rate
Agent or Exchange Rate Agents with respect to the Securities of
that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless otherwise
specified pursuant to Section 301, at any time there shall only be
one Exchange Rate Agent with respect to the Securities of any
particular series that are originally issued by the Company on the
same date and that are initially denominated and/or payable in the
same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified
in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series
herein expressly provided for and the obligation of the Company to
pay any Additional Amounts as contemplated by Section 1005) and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has
been waived as provided in Section 305, (ii) Securities and
coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by
the Company and thereafter repaid to the Company, as provided
in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in the Currency in which the Securities of such
series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 606, the obligations of the Trustee to any Authenticating
Agent under Section 611 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to
the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest on any Security
of that series, or any related coupon, when such interest or
coupon becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and
Article 12; or
(4) default in the performance, or breach, of any covenant
or agreement of the Company in this Indenture which affects or
is applicable to the Securities of that series (other than a
default in the performance, or breach of a covenant or
agreement which is specifically dealt with elsewhere in this
Section or which has expressly been included in this Indenture
solely for the benefit of one or more series of Securities
other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25%
in principal amount of all Outstanding Securities of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under the Federal Bankruptcy Code or any
other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy
Code or any other applicable federal or state law, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they
become due; or
(7) there shall have occurred one or more defaults by the
Company or any Subsidiary in the payment of the principal of
(or premium, if any, on) Debt in excess of 10% of Consolidated
Net Worth under one or more agreements, indentures or
instruments and either (i) such Debt has already become due and
payable in full at the stated maturity thereof or (ii) such
default or defaults results in the acceleration of the maturity
of such Debt; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default described in clause (1), (2), (3), (4),
(7) or (8) of Section 501 with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities or Indexed 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 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 portion thereof) shall become
immediately due and payable. If an Event of Default specified in
Section 501(5) or 501(6) occurs and is continuing, then the
principal amount of all the Securities 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 a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in
this Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series (or of all series, as the
case may be), 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 in the Currency in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)),
(A) all overdue interest on all Outstanding Securities of
that series (or of all series, as the case may be) and any
related coupons,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as the
case may be) which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of
that series (or of all series, as the case may be), other than
the non-payment of amounts of principal of (or premium, if any,
on) or interest on Securities of that series (or of all series,
as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities because of
an Event of Default specified in Section 501(7) shall have occurred
and be continuing, such declaration of acceleration shall be
automatically annulled if the Debt that is the subject of such
Event of Default has been discharged or the holders thereof have
rescinded their declaration of acceleration in respect of such
Debt, and written notice of such discharge or rescission, as the
case may be, shall have been given to the Trustee by the Company
and countersigned by the holders of such Debt or a trustee,
fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Securities, and no
other Event of Default has occurred during such 30-day period which
has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such
interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the
Trustee for the benefit of the Holders of such Securities and
coupons, the whole amount then due and payable on such Securities
and coupons for principal (and premium, if any) and interest, and
interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name 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 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, wherever situated.
If an Event of Default with respect to Securities of any series
(or of all series, as the case may be) occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such
series (or of all series, as the case may be) by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial 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,
premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the
principal amount of any series of Original Issue Discount
Securities or Indexed Securities as may be specified in the
terms of such series, and interest 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
(ii) 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 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has
been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon
presentation of the Securities or coupons, or both, as the case may
be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 606;
Second: To the payment of the amounts then due and unpaid
for principal of (and premium, if any, on) and interest on the
Securities and coupons in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal
(and premium, if any) and interest, respectively; and
Third: The balance, if any, to the Company or any other
Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series in the case of any
Event of Default described in clause (1), (2), (3), (4), (7) or
(8) of Section 501, or, in the case of any Event of Default
described in clause (5) or (6) of Section 501, the Holders of
not less than 25% in principal amount of all Outstanding
Securities, 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 or more in principal amount of the
Outstanding Securities of that series in the case of any Event
of Default described in clause (1), (2), (3), (4), (7) or (8)
of Section 501, or, in the case of any Event of Default
described in clause (5) or (6) of Section 501, by the Holders
of a majority or more in principal amount of all Outstanding
Securities;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities
of the same series, in the case of any Event of Default described
in clause (1), (2), (3), (4), (7) or (8) of Section 501, or of
Holders of all Securities in the case of any Event of Default
described in clause (5) or (6) of Section 501, 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
Holders of Securities of the same series, in the case of any Event
of Default described in clause (1), (2), (3), (4), (7) or (8) of
Section 501, or of Holders of all Securities in the case of any
Event of Default described in clause (5) or (6) of Section 501.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including,
if applicable, Article Fourteen) and in such Security, of the
principal of (and premium, if any, on) and (subject to Section 307)
interest on, such Security or payment of such coupon on the
respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Securities
and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders
of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of
not less than a majority in principal amount of the Outstanding
Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under clause (1),
(2), (3), (4), (7) or (8) of Section 501, and, with respect to all
Securities, the Holders of not less than a majority in principal
amount of all Outstanding Securities 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, not relating to or arising under clause
(1), (2), (3), (4), (7) or (8) of Section 501, provided that in
each case
(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) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to
the Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, 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 described in clause (1), (2), (3), (4), (7) or (8)
of Section 501 (or, in the case of a default described in clause
(5) or (6) of Section 501, the Holders of not less than a majority
in principal amount of all Outstanding Securities may waive any
such past default), and its consequences, except a default
(1) in respect of the payment of the principal of (or
premium, if any, on) or interest on any Security or any related
coupon, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. 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 in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided,
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 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 and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of
the Holders of Securities of such series and any related coupons;
and provided, further, that in the case of any Default of the
character specified in Section 501(3) with respect to Securities of
such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(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 of Securities of
any series or any related coupons pursuant to this Indenture,
unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(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, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney;
(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 attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; 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.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except for
the Trustee's certificates of authentication, and in any coupons
shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities or
coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
The obligations of the Company under this Section to compensate
the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the
Trustee shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture. As
security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium,
if any, on) or interest on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus of at least $50,000,000. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of Federal, State,
territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of not less than
a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or
any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may
remove the Trustee with respect to all Securities, or (ii) subject
to TIA Section 315(e), any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series to the Holders of Securities of such
series in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee 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 co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms "Indenture" and
"Securities" shall have the meanings specified in the provisos to
the respective definitions of those terms in Section 101 which
contemplate such situation.
(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 rights,
powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities; and in case at that time any of the Securities
shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such
series and the Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished
to the Company. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of
the series with respect to which such Authenticating Agent will
serve, in the manner provided for in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 606.
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 alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Trustee
By
as Authenticating Agent
By
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall transmit to the Holders of
Securities, in the manner and to the extent provided in TIA Section
313(c), a brief report dated as of such May 15 if required by TIA
Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of such Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions
and covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the
extent provided in TIA Section 313(c), 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 paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease, or permit one or more of
its Subsidiaries to convey, transfer or lease, all or substantially
all of the property and assets of the Company and its Subsidiaries
on a consolidated basis, to any Person, unless:
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company and its Subsidiaries on a consolidated
basis (A) shall be a corporation, partnership or trust
organized and validly existing under the laws of the United
States of America, any state thereof or the District of
Columbia and (B) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the Company's obligation for
the due and punctual payment of the principal of (and premium,
if any, on) and interest on all the Securities and the
performance and 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
Default or Event of Default shall have occurred and be
continuing; and
(3) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in
which the Company is not the surviving corporation and to
conveyances, leases and transfers by the Company as transferor or
lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or
lease of the properties and assets of the Company and its
Subsidiaries on a consolidated basis to any Person in accordance
with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been
named as the Company herein, and 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 Indenture or any successor Person which shall
theretofore become such in the manner described in Section 801),
except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities
and the coupons and may be dissolved and liquidated.
SECTION 803. Securities to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or merger
of the Company into any other corporation, or upon any conveyance,
lease or transfer of the property or assets of the Company and its
Subsidiaries on a consolidated basis to any other Person, any
property or assets of the Company or of any Subsidiary, or any
Restricted Securities owned immediately prior thereto, would
thereupon become subject to any Lien, then unless such Lien could
be created pursuant to Section 1009 without securing the
Securities, the Company, prior to or simultaneously with such
consolidation, merger, conveyance, lease or transfer, will, as to
such property or assets or Restricted Securities, secure the
Securities Outstanding hereunder (together with, if the Company
shall so determine, any other Debt of the Company now existing or
hereafter created which is not subordinate to the Securities), or
will cause such Securities to be so secured, (i) prior to any Debt
which upon such consolidation, merger, conveyance, lease or
transfer is to become secured by such Lien ("Secured Debt") and
which is expressly by its terms subordinate or junior in right of
payment to Securities Outstanding hereunder with the same relative
priority as such subordinated Debt has with respect to such
Securities or (ii) equally and ratably with (or prior to) any
Secured Debt which is pari passu with Securities outstanding
hereunder; provided that, for the purpose of providing such equal
and ratable security, the principal amount of Original Issue
Discount Securities and Indexed Securities shall mean that amount
which would at the time of making such effective provision be due
and payable pursuant to Section 502 and the terms of such Original
Issue Discount Securities and Indexed Securities upon a declaration
of acceleration of the Maturity thereof, and the extent of such
equal and ratable security shall be adjusted, to the extent
permitted by law, as and when
said amount changes over time pursuant to the terms of such
Original Issue Discount Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. 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 contained herein and in the
Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any
related coupons (and if such covenants are to be for the
benefit of less than all series of Securities, stating that
such covenants are being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are
being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable
as to principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form; provided that
any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in
any material respect; or
(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 entitled to the benefit of such provision;
or
(6) to secure the Securities pursuant to the requirements
of Section 803 or 1009 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 609(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities,
to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters
or questions arising under this Indenture; provided such action
shall not adversely affect the interests of the Holders of
Securities of any series and any related coupons in any
material respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
that any such action shall not adversely affect the interests
of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, by
Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture
which affect such series of Securities 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 of such series,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security of such series, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts
contemplated by Section 1005 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount
of the principal of an Original Issue Discount Security of such
series that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or
the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option
of any Holder of any Security of such series, or change any
Place of Payment where, or the Currency in which, any Security
of such series or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or,
in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such series required for any such
supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture which affect such series
or certain defaults applicable to such series hereunder and
their consequences provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting with
respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section
513 or Section 1011, except to increase any such percentage or
to provide that certain other provisions of this Indenture
which affect such series cannot be modified or waived without
the consent of the Holder of each Outstanding Security of such
series.
Any such supplemental indenture adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture, or modifying in any manner the rights of the Holders of
Securities of such series, shall not affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each
Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the Holders
of each series of Securities and any related coupons that it will
duly and punctually pay the principal of (and premium, if any, on)
and interest on the Securities of that series in accordance with
the terms of the Securities, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest
installments due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as
they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in 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 following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered
for payment; provided, however, that, if the Securities of that
series are listed on 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
(C) 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 any Registered Securities
of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the
offices specified in the Security, in London, and the Company
hereby appoints the same as its agents to receive such respective
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or
interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account
maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any, on) and
interest on any Bearer Security shall be made at the office of the
Company's Paying Agent in The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside
the United States maintained for 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 any such designation; 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 of any such designation or
rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any
Securities as contemplated by Section 301 with respect to a series
of Securities, the Company hereby designates as a Place of Payment
for each series of Securities the office or agency of the Company
in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent
in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any
series (i) are denominated in a Currency other than Dollars or (ii)
may be payable in a Currency other than Dollars, or so long as it
is required under any other provision of the Indenture, then the
Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons,
it will, on or before each due date of the principal of (and
premium, if any, on) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal (and premium, if any) 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 and any related coupons, it will, prior to
or on each due date of the principal of (and premium, if any, on)
or interest on any Securities of that series, deposit with a Paying
Agent a sum (in the Currency described in the preceding paragraph)
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 (other than the
Trustee) for any series of Securities 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) and interest on
Securities of such 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 such series) in
the making of any payment of principal of (or premium, if any,
on) or interest on the Securities of such 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 sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium,
if any, on) or interest on any Security of any series, or any
coupon appertaining thereto, 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 on Company Request, or
(if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture.
For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of
notice under this Indenture.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of
additional amounts to any Holder who is not a United States person
in respect of any tax, assessment or governmental charge
("Additional Amounts"), the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto such
Additional Amounts as may be specified as contemplated by Section
301. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment
of any related coupon or the net proceeds received on the sale or
exchange of any Security of a series, such mention shall be deemed
to include mention of the payment of Additional Amounts provided
for by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day
on which a payment of principal (and premium, if any) is made), and
at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of
(and premium, if any, on) or interest on the Securities of that
series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If
any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of
that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. In the event that the Trustee or any
Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent
shall be entitled to (i) assume that no such withholding or
deduction is required with respect to any payment of principal (and
premium, if any) or interest with respect to any Securities of a
series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of
principal (and premium, if any) and interest with respect to the
Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
material taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all
material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon any property or assets of
the Company or any Subsidiary that comprise more than 20% of
Consolidated Net Tangible Assets; provided, however, that the
Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1007. Maintenance of Properties.
The Company will cause all property necessary for the operation
of the business of the Company and its Subsidiaries as a whole to
be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent or
restrict the sale, abandonment or other disposition of any of such
property if such action is, in the judgment of the Company,
desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and not disadvantageous in any material
respect to the Holders.
SECTION 1008. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and
statutory) and franchises of the Company and any Subsidiary;
provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries as a whole.
SECTION 1009. Limitation on Liens.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create, incur, issue or assume any Debt
secured by any Lien on any property or assets owned by the Company
or any Subsidiary, and the Company will not, and will not permit
any Subsidiary to, create, incur, issue or assume any Debt secured
by any Lien on any shares of stock or Debt of any Subsidiary (such
shares of stock or Debt of any Subsidiary being called "Restricted
Securities"), unless (i) in the case of Debt which is expressly by
its terms subordinate or junior in right of payment to the
applicable series of Securities, such Securities (together with, if
the Company shall so determine, any other Debt of the Company or
such Subsidiary then existing or thereafter created which is not
subordinate to the Securities) are secured by a Lien on such
property or assets that is senior to such other Lien with the same
relative priority as such subordinated Debt has with respect to the
applicable series of Securities or (ii) in the case of Liens
securing Debt which is pari passu with the applicable series of
Securities, such Securities are secured by a Lien on such property
or assets that is equal and ratable with (or prior to) such other
Lien, except that any Lien securing such applicable series of
Securities may be junior to any Lien on the Company's accounts
receivable, inventory and related contract rights securing Debt
under the Company's Bank Credit Facility; provided, however, that
nothing contained in this Section shall prevent, restrict or apply
to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(a) Liens on any property or assets or Restricted Securities
of the Company or any Subsidiary existing as of the date of the
first issuance by the Company of the applicable Securities
issued pursuant to this Indenture or such other date as may be
specified in a Prospectus Supplement for an applicable series
of Securities issued pursuant to the Indenture, subject to the
provisions of subsection (h) below;
(b) Liens on any property or assets or Restricted Securities
of any corporation existing at the time such corporation
becomes a Subsidiary, or arising thereafter (i) otherwise than
in connection with the borrowing of money arranged thereafter
and (ii) pursuant to contractual commitments entered into prior
to and not in contemplation of such corporation's becoming a
Subsidiary;
(c) Liens on any property or assets or Restricted Securities
of the Company or any Subsidiary existing at the time of
acquisition thereof (including acquisition through merger or
consolidation or by a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as
an entirety to the Company or a Subsidiary) or securing the
payment of all or any part of the purchase price or
construction cost thereof or securing any Debt incurred prior
to, at the time of or within 120 days after, the acquisition of
such property or assets or Restricted Securities or the
completion of any such construction, whichever is later, for
the purpose of financing all or any part of the purchase price
or construction cost thereof (provided such Liens are limited
to such property or assets or Restricted Securities, to
improvements on such property and to any other property or
assets not then owned by the Company or any Subsidiary or
constituting Restricted Securities);
(d) Liens on any property or assets to secure all or any
part of the cost of development, operation, construction,
alteration, repair or improvement of all or any part of such
property or assets, or to secure Debt incurred by the Company
or any Subsidiary prior to, at the time of or within 120 days
after, the completion of such development, operation,
construction, alteration, repair or improvement, whichever is
later, for the purpose of financing all or any part of such
cost provided such Liens are limited to such property or
assets, improvements thereon and any other property or assets
not then owned by the Company or a Subsidiary;
(e) Liens in favor of the Trustee for the benefit of the
Holders and subsequent holders of the Securities securing the
Securities;
(f) Liens secured by property or assets of the Company or
any Subsidiary that comprise no more than 20% of Consolidated
Net Tangible Assets;
(g) Liens which secure Debt owing by a Subsidiary to the
Company or to another Subsidiary; and
(h) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or
replacements), as a whole or in part, of any of the Liens
referred to in paragraphs (a) through (g)
above or the Debt secured thereby; provided that (1) such
extension, renewal, substitution or replacement Lien shall be
limited to all or any part of the same property or assets or
Restricted Securities that secured the Lien extended, renewed,
substituted or replaced (plus improvements on such property,
and plus any other property or assets not then owned by the
Company or a Subsidiary or constituting Restricted Securities)
and (2) in the case of paragraphs (a) through (c) above, the
Debt secured by such Lien at such time is not increased.
For the purposes of this Section 1009, the giving of a
guarantee which is secured by a Lien on any property or assets or
Restricted Securities, and the creation of a Lien on any property
or assets or Restricted Securities to secure Debt which existed
prior to the creation of such Lien, shall be deemed to involve the
creation of Debt in an amount equal to the principal amount
guaranteed or secured by such Lien; but the amount of Debt secured
by Liens on property or assets and Restricted Securities shall be
computed without cumulating the underlying indebtedness with any
guarantee thereof or Lien securing the same.
SECTION 1010. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any Subsidiary to,
enter into any arrangement after the date of the original issuance
by the Company of the applicable series of Securities issued
pursuant to the Indenture, or such other date as may be specified
in a Prospectus Supplement for an applicable series of Securities
issued pursuant to the Indenture, with any Person (other than the
Company or another Subsidiary) providing for the leasing by the
Company or any such Subsidiary of any property (except a lease for
a temporary period not to exceed three years by the end of which it
is intended that the use of such property by the lessee will be
discontinued) that was or is owned or leased by the Company or a
Subsidiary and that has been or is to be sold or transferred by the
Company or such Subsidiary to such Person (herein referred to as a
"sale and leaseback transaction") unless either:
(a) after giving pro forma effect to such transaction, the
Attributable Debt of the Company and its Subsidiaries in
respect of such sale and leaseback transaction and all other
sale and leaseback transactions entered into after the date of
the first issuance by the Company of Securities issued pursuant
to this Indenture (other than such sale and leaseback
transactions as are permitted by paragraph (b) below) would not
exceed 20% of Consolidated Net Tangible Assets, or
(b) the Company, within 180 days after the sale and
leaseback transaction, applies or causes a Subsidiary to apply
an amount equal to the greater of the net proceeds from the
sale of the property subject to the sale and leaseback
transaction or the fair market value of the property so sold
and leased back at the time of the sale and leaseback
transaction (in either case as determined by any two of the
following: the Chairman, the President, any Vice President,
the Treasurer and the Controller of the Company) to the
retirement of Securities of any series or any other Debt of the
Company (other than Debt subordinated to the Securities) or
Debt of a Subsidiary having a stated maturity more than 12
months from the date of such application or which is extendible
at the option of the obligor thereon to a date more than 12
months from the date of such application (and, unless otherwise
expressly provided with respect to any one or more series of
Securities, any redemption of Securities pursuant to this
provision shall not be deemed to constitute a refunding
operation or anticipated refunding operation for the purposes
of any provision limiting the Company's right to redeem
Securities of any one or more such series when such redemption
involves a refunding operation or anticipated refunding
operation); provided that the amount to be so applied shall be
reduced by (i) the principal amount of Securities delivered
within 180 days after such sale or transfer to the Trustee for
retirement and cancellation and (ii) the principal amount of
any such Debt of the Company or a Subsidiary, other than
Securities, voluntarily retired by the Company or a Subsidiary
within 180 days after such sale or transfer. Notwithstanding
the foregoing, no retirement referred to in this paragraph (b)
may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment
provision.
Notwithstanding the foregoing, where the Company or any
Subsidiary is the lessee in any sale and leaseback transaction,
Attributable Debt shall not include any Debt resulting from the
guarantee by the Company or any other Subsidiary of the lessee's
obligation thereunder.
SECTION 1011. Provision of Financial Information.
So long as any of the Securities are outstanding, the Company
will file, to the extent permitted under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with the Commission
the annual reports, quarterly reports and other documents otherwise
required to be filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act as if the Company were subject to such
Sections and will also provide to all Holders and file with the
Trustee copies of such reports and documents within 15 days after
it files them with the Commission or, if filing such reports and
documents by the Company with the Commission is not permitted under
the Exchange Act, within 15 days after it would otherwise have been
required to file such reports and documents if permitted, in each
case at the Company's cost.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of
such Securities and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall
enable the Trustee to select the Securities to be redeemed pursuant
to Section 1103. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
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 of the principal of Securities
of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not
redeemed to less than the minimum authorized denomination for
Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in
Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date
payable as provided in Section 1106) will become due and
payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease
to accrue on and after said date,
(5) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is
the case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished, and
(8) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges may
be made.
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 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay the Redemption Price of, and accrued
interest on, all the Securities which are to be redeemed on that
date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified in the
Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any,
to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest, and provided, further, that
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 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption or portion thereof shall
not be so paid upon surrender thereof for redemption, the principal
(and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) set forth in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Twelve) 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 such Holder's
attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking
fund shall be made in accordance with the terms of such Securities
and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
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 mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
Subject to Section 1203, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities
of a series in cash, the Company may at its option (1) deliver to
the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or
otherwise acquired by the Company together in the case of any
Bearer Securities of such series with all unmatured coupons
appertaining thereto, and/or (2) receive credit for the principal
amount of Securities of such series which have been previously
delivered to the Trustee by the Company or for Securities of such
series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all
or any part of any mandatory sinking fund payment with respect to
the Securities of the same series required to be made pursuant to
the terms of such Securities as provided for by the terms of such
series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for 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 in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously
delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking
fund payment with respect to such series. Such certificate shall
be irrevocable and upon its delivery the Company shall be obligated
to make the cash payment or payments therein referred to, if any,
on or before the next succeeding sinking fund payment date. In the
case of the failure of the Company to deliver such certificate, the
sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of such
Securities subject to a mandatory sinking fund payment without the
option to deliver or credit Securities as provided in Section 1202
and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) in cash a sum equal to any interest that will accrue
to the date fixed for redemption of Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this
Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to
be paid into such sinking fund on the next succeeding sinking fund
payment date, together with any unused balance of any preceding
sinking fund payment or payments for such series, does not exceed
in the aggregate $100,000, the Trustee, unless requested by the
Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of
the sinking fund. Any such unused balance of moneys deposited in
such sinking fund shall be added to the sinking fund payment for
such series to be made in cash on the next succeeding sinking fund
payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or
otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee
or any Paying Agent will be reimbursed by the Company) not in
excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise
provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if
any, thereon accrued to the Repayment Date specified in or pursuant
to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal (or, if so provided by the terms of
the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof,
as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment"
form on the reverse of such Securities. To be repaid at the option
of the Holder, any Security so providing for such repayment, with
the "Option to Elect Repayment" form on the reverse of such
Security duly completed by the Holder (or by the Holder's attorney
duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security
(or at such other place or places or which the Company shall from
time time notify the Holders of such Securities) not earlier than
45 days nor later than 30 days prior to the Repayment Date. If
less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a
part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as
provided in this Article and as provided by or pursuant to the
terms of such Securities, such Securities or the portions thereof,
as the case may be, to be repaid shall become due and payable and
shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment
Date) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to
the extent provided below, shall be void. Upon surrender of any
such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such Security so
to be repaid shall be paid by the Company, together with accrued
interest, if any, to the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons, and provided further
that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the
face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such
principal amount (together with interest, if any, thereon accrued
to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid
in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered
Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article
Fourteen shall apply to each series of Securities, and the Company
may, at its option, effect defeasance of the Securities of or
within a series under Section 1402, or covenant defeasance of or
within a series under Section 1403 in accordance with the terms of
such Securities and in accordance with this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series,
the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any
related coupons on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such
Outstanding Securities and any related coupons, which shall
thereafter be deemed to be "Outstanding" only for the purposes of
Section 1405 and the other Sections of this Indenture referred to
in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this
Indenture insofar as such Securities and any related coupons are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely
from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and
premium, if any, on) and interest on such Securities and any
related coupons when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by
Section 1005, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its
option under this Section 1402 notwithstanding the prior exercise
of its option under Section 1403 with respect to such Securities
and any related coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series,
the Company shall be released from its obligations under Section
803 and Sections 1006 through 1010, and, if specified pursuant to
Section 301, its obligations under any other covenant, with respect
to such Outstanding Securities and any related coupons on and after
the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any
related coupons shall thereafter be deemed not to be "Outstanding"
for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such
Outstanding Securities and any related coupons, the Company may
omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of reference in
any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default
or an Event of Default under Section 501(4) or Section 501(8) or
otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any related coupons:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with
the provisions of this Article Fourteen applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and
any related coupons, (A) an amount (in such Currency in which
such Securities and any related coupons are then specified as
payable at Stated Maturity), or (B) Government Obligations
applicable to such Securities (determined on the basis of the
Currency in which such Securities are then specified as payable
at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment of principal (including any premium) and
interest, if any, under such Securities and any related
coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any, on) and interest on such Outstanding
Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium,
if any) or installment or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such
Outstanding Securities and any related coupons on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any related
coupons; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the
Company may give to the Trustee, in accordance with Section
1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and
Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect
in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be
continuing on the date of such deposit or, insofar as
paragraphs (5) and (6) of Section 501 are concerned, at any
time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of execution of this Indenture,
there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Outstanding
Securities and any related coupons 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.
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any related coupons 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.
(6) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions
or limitations in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either
the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied
with.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as
may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying
trustee--collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding
Securities and any related coupons shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and any related coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any related
coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need
not be segregated from other funds except to the extent required by
law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section
1404(1) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect
pursuant to Section 312(b) or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant
to Section 1404(1) has been made in respect of such Security, or
(b) a Conversion Event occurs as contemplated in Section 312(d) or
312(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 1404(1) has been made, the indebtedness
represented by such Security and any related coupons shall be
deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (premium, if any, on), and
interest, if any, on such Security as they become due out of the
proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in
which such Security becomes payable as a result of such election or
Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the third Business Day prior to each
payment date, except, with respect to a Conversion Event, for such
Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities and any related coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or
covenant defeasance, as applicable, in accordance with this
Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 1405 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's
obligations under this Indenture and such Securities and any
related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case
may be, until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1405; provided,
however, that if the Company makes any payment of principal of (or
premium, if any, on) or interest on any such Security or any
related coupon following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such
Securities and any related coupons to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501,
to be held at such time and at such place in The 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 for in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place
in The 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 paragraph (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (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 of
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 Person entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum
for a meeting of Holders of Securities of such series; provided,
however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken
by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Securities of
that series.
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.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities
of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this
Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any 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 its
shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The 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 1502(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal
amount of Outstanding Securities of such series held or represented
by him (determined as specified in the definition of "Outstanding"
in Section 101); 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 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at 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 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the 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.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same Indenture.
<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.
[Seal] SOUTHERN UNION COMPANY
Attest:
By:\s\Dennis Morgan By: \s\Ronald J. Endres
Secretary Senior Vice President
of Administration and
Chief Financial Officer
[Seal] THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
Attest:
By: \s\Josephine Mannino By: \s\J. D. Heaney
Assistant Secretary Vice President
<PAGE>
SOUTHERN UNION COMPANY
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
Trustee
Indenture
Dated as of January 31, 1994
<PAGE>
SOUTHERN UNION COMPANY
Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and the Indenture, dated as of January 31, 1994
Trust Indenture Indenture
Act Section Section
310(a)(1).............................607
(a)(2)................................607
(b)...................................608
312(c)................................701
314(a)................................703
(a)(4)...............................1004
(c)(1)................................102
(c)(2)................................102
(e)...................................102
315(b)................................601
316(a)(last
sentence).............................101 ("Outstanding")
(a)(1)(A)........................502, 512
(a)(1)(B).............................513
(b)...................................508
(c)................................104(e)
317(a)(1).............................503
(a)(2)................................504
(b)..................................1003
318(a)................................111
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our
account (i) are owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject
to United States federal income taxation regardless of its source
("United States persons(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred
to as "financial institutions") purchasing for their own account or
for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise
Southern Union Company or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale
during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial
institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
<PAGE>
A-1-1
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification
relating to the above-captioned Securities held by you for our
account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to
[U.S.$] of such interest in the above-captioned
Securities in respect of which we are not able to certify and as to
which we understand an exchange for an interest in a Permanent
Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the Exchange
Date or (ii) the relevant Interest Payment Date occurring prior to
the Exchange Date, as applicable]
[Name of Person Making
Certification]
(Authorized Signatory)
Name:
Title:
<PAGE>
A-1-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic
transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth
below (our "Member Organizations") substantially in the form
attached hereto, as of the date hereof, [U.S.$] principal
amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned
by United States person(s) that are (a) foreign branches of United
States financial institutions (financial institutions, as defined
in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a)
or (b), each such financial institution has agreed, on its own
behalf or through its agent, that we may advise Southern Union
Company or its agent that such financial institution will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for
A-2-1
purposes of resale directly or indirectly to a United States person
or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest)
any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment Date
occurring prior to the Exchange
Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear System]
[CEDEL S.A.]
By <PAGE>
Exhibit 4.2
SOUTHERN UNION COMPANY
7.60% Senior Notes Due 2024
OFFICERS' CERTIFICATE
THE UNDERSIGNED, Ronald J. Endres and Dennis K.
Morgan, do hereby certify that they are the duly appointed,
qualified and acting Senior Vice President - Finance and
Administration and Chief Financial Officer and Vice President -
Legal and Secretary, respectively, of Southern Union Company, a
Delaware corporation (the "Company"), and they do hereby
further certify that there is hereby established pursuant to
the resolutions duly adopted by the Board of Directors of the
Company on December 13, 1993 and by the Executive Committee
thereof on January 10 and 24, 1994 (the "Resolutions") and
Section 301 of the Indenture, dated as of January 31, 1994 (the
"Indenture"), between the Company and The Chase Manhattan Bank
(National Association), Trustee (the "Trustee"), a series of
Securities (as that term is used in Section 301 of the
Indenture) to be issued under the Indenture, which series of
Securities shall have the following terms and such additional
terms as shall be set forth in the form of Notes (as defined
below) attached hereto as Exhibit A (unless otherwise defined
herein, capitalized terms used herein have the meanings
assigned thereto in the Indenture):
1. The Securities shall be entitled "7.60% Senior
Notes Due 2024" (the "Notes").
2. The aggregate principal amount of Notes that may
be authenticated and delivered under the Indenture shall be
limited to $475,000,000 (except for Notes authenticated and
delivered upon registration of, transfer of, or in exchange
for, or in lieu of other Notes pursuant to Section 305, 306 or
906 of the Indenture).
3. The principal amount of the Notes shall mature on
February 1, 2024, subject to the provisions of Section 502 of
the Indenture respecting acceleration.
4. The Notes shall bear interest from January 31,
1994, or from the most recent interest payment date to which
interest has been paid or provided for, at the rate of 7.60%
per annum, payable semiannually in arrears on February 1 and
August 1 of each year, commencing August 1, 1994, for payment
to holders on the respective Regular Record Dates referred to
in the Indenture, which dates shall be the next preceding
January 15 and July 15, respectively.
5. The principal of and interest on the Notes shall
be payable at the office or agency (initially the Corporate
Trust Office of the Trustee in Brooklyn, New York) maintained
by the Company for that purpose, pursuant to the Indenture, in
New York, New York; except that at the option of the Company,
interest may be paid (a) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (b) by wire transfer to an account
maintained by the Person entitled thereto as specified in the
Security Register.
6. The Notes may not be redeemed at any time prior
to the Stated Maturity thereof (February 1, 2024).
7. The Notes shall not be subject to the operation
of any sinking fund or an analogous provision.
8. The Notes will include the following additional
covenants:
(A) Limitations on Restricted Payments: The Company
will not (and, with respect to clause (ii) will not permit any
Subsidiary to) directly or indirectly (i) declare or pay any
dividend on or make any distribution to the holders of, any
shares of its Capital Stock (other than dividends and
distributions payable solely in shares of its Capital Stock
(other than Redeemable Stock) or in options, warrants or other
rights to acquire in Capital Stock (other than Redeemable
Stock)) or (ii) purchase, redeem or otherwise acquire or retire
for consideration any shares of the Company's Capital Stock
(each of the foregoing being referred to herein as a
"Restricted Payment") unless, at the time of and after giving
effect to such Restricted Payment, (1) no Default or Event of
Default shall have occurred and be continuing and (2) the
aggregate amount of all such Restricted Payments at the time of
such Restricted Payment does not exceed the sum of (A) 50% of
the cumulative Consolidated Net Income of the Company from the
date of the Indenture through the last day (the "Cut-Off Date")
of the second fiscal quarter during which the Company's Equity
to Funded Indebtedness Ratio exceeded 0.73 to 1 (or, if such
Consolidated Net Income is a loss during such period, minus
100% of such loss) and 100% of the cumulative Consolidated Net
Income of the Company after the Cut-Off Date (or, if such
Consolidated Net Income is a loss during such period, minus
100% of such loss), plus (B) the aggregate net proceeds to the
Company from sales of its Capital Stock (other than Redeemable
Stock and Capital Stock sold to a Subsidiary) after
the date of the Indenture.
"Capital Stock" of any Person means any and all
shares, interests, participations, or other equivalents
(however designated) of such Persons' capital stock whether now
outstanding or issued after the date of the Indenture.
"Funded Indebtedness" means Indebtedness that
matures more than one year from the date of determination.
"Equity to Funded Indebtedness Ratio" means the
ratio of the Company's total common stockholders' equity to the
Company's consolidated Funded Indebtedness.
"Redeemable Stock" means any class or series of
Capital Stock that by its terms or otherwise is required to be
redeemed prior to the Stated Maturity of the Securities or is
redeemable at the option of the holder thereof at any time
prior to the Stated Maturity of the Securities.
(B) Restriction on Transfer of Assets: The Company
will not sell, convey, transfer or otherwise dispose of its
assets or property to any of its Subsidiaries, except for: (i)
sales, conveyances, transfers or other dispositions of assets
or property acquired by the Company after the date of the
Indenture; (ii) sales, conveyances, transfers or other
dispositions of Existing Assets (a) with a net book value that,
when aggregated with all other such transfers by the Company
since the date of the Indenture, less the net book value of
Existing Assets transferred to the Company from its
Subsidiaries, would not exceed 10% of the Consolidated Assets
of the Company or (b) to any Subsidiary if such Subsidiary
simultaneously with such transfer executes and delivers a
supplemental indenture to the Indenture providing for the
guarantee of payment of the Notes by such Subsidiary, which
guarantee shall be senior to any guarantee of such Subsidiary
of subordinated Debt of the Company, and shall be pari passu
with any other Debt of such Subsidiary (which is not
subordinated to any other Debt or guarantee of such
Subsidiary); and (iii) sales, conveyances, transfers or other
dispositions of Disposable Assets that would not exceed 10% of
Consolidated Assets of the Company. Notwithstanding the
foregoing, any such guarantee of a Subsidiary of the Notes
shall provide by its terms that it shall be automatically and
unconditionally released and discharged (i) on the date that the
net book value of the Existing Assets held by the Company
is greater than 90% of Consolidated Assets or (ii) upon any
sale, exchange or transfer to any Person not an Affiliate of
the Company of all of the Company's stock in, or all or
substantially all the assets of, such Subsidiary.
"Consolidated Assets" means the net book value of
the Existing Assets shown on the balance sheet of the Company,
as determined in accordance with GAAP consistently applied, as
of the last day of the Company's last fiscal quarter prior to
the date of the Indenture.
"Disposable Assets" means General Plant (as
defined below) and all assets primarily used in the natural gas
vehicular fuels business.
"Existing Assets" means the assets and other
property held by the Company (and not its subsidiaries) as of
the last day of the Company's last fiscal quarter prior to the
date of the Indenture, plus any assets held by the Company (and
not its subsidiaries) irrevocably designated from time to time
by the Company as Existing Assets.
"General Plant" shall have the meaning set forth
under the "Uniform System of Accounts for Class A and B Gas
Utilities 1976 National Association of Regulatory Utility
Commissioners" Chapter 6; Accounts 389 through and including
398.
(C) Limitation on Transactions with Affiliates: The
Company will not, and will not permit any Subsidiary to, enter
into any transactions with any Affiliate of the Company unless
(i) such transactions are between and among the Company and
wholly owned Subsidiaries or (ii) (A) the terms of such
transactions are no less favorable to the Company or such
Subsidiary, as the case may be, then the terms which could be
obtained by the Company or such Subsidiary, as the case may be,
in a comparable transaction made on a arm's-length basis
between unaffiliated parties and (B) a majority of the
disinterested directors of the Board of Directors of the
Company shall by resolution determine that such transactions
meet the criteria set forth in clause (ii)(A) above.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate on this 31st day of January, 1994.
Ronald J. Endres
Senior Vice President - Finance &
Administration and Chief Financial
Officer
Dennis K. Morgan
Vice President - Legal and Secretary
<PAGE>
OFFICERS' CERTIFICATE
Reference is made to the Indenture dated as of
January 31, 1994 (the "Indenture") by and between Southern
Union Company, a Delaware corporation (the "Company") and The
Chase Manhattan Bank (National Association), as Trustee (the
"Trustee").
The undersigned, the duly appointed, qualified and
acting Senior Vice President - Finance & Administration and
Chief Financial Officer and Vice President - Legal and
Secretary, respectively, of the Company, do hereby certify, in
conformity with Section 102 of the Indenture, as follows:
1. We have read the Indenture, including the
provisions of Section 303 thereof and the definitions contained
in the Indenture relating thereto, and examined other relevant
corporate records and instruments.
2. In the opinion of each of the undersigned, he has
made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
all conditions precedent provided in the Indenture relating to
the authentication and delivery by the Trustee of the Notes
have been complied with.
3. In the opinion of each of the undersigned, all
such conditions precedent have been complied with.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate on this 31st day of January, 1994.
Ronald J. Endres
Senior Vice President - Finance &
Administration and Chief Financial
Officer
Dennis K. Morgan
Vice President - Legal and Secretary
<PAGE>
Exhibit 99.1
94-02 Michel' Quakenbush Sarah Russ
Western Resources Southern Union Company
(913)575-1927 (512)370-8240
SOUTHERN UNION ACQUIRES MISSOURI GAS OPERATIONS
KANSAS CITY, MISSOURI (January 31, 1994) -- Southern Union
Company (AMEX:SUG) and Western Resources, Inc. (NYSE:WR) today
completed Southern Union's purchase from Western Resources of the
Missouri gas distribution operations serving approximately 460,000
customers in western and central Missouri pursuant to their
previously announced agreement.
The approximately $400 million acquisition was funded through
Southern Union's previously announced subscription rights offering
of Common Stock completed in December 1993 and sale of Senior Notes
Due 2024. The closing for the sale of the Senior Notes occurred
concurrently with the acquisition.
"Southern Union is in a prime position for a profitable future,"
said George L. Lindemann, chairman and chief executive officer.
"This acquisition almost doubles the company's size, adds a colder
climate to balance our Texas operations, and opens a new arena to
market non-traditional uses of natural gas." Southern Union is a
pioneer in natural gas vehicle technology, natural gas air-
conditioning and other gas engine-driven applications that offset
the seasonal nature of the gas business.
"We have worked very diligently with Southern Union to ensure a
smooth transition in operations and customer service," said John E.
"We expect the sale to have a favorable impact on key credit
measures while allowing us to continue building financial strength
and flexibility," Hayes said. "We still remain a $5.1 billion
company and continue to position ourselves for the more competitive
marketplace environment now facing utilities."
The Missouri properties sold by Western Resources to Southern
Union represent approximately seven percent of Western Resources'
net utility plant, 18 percent of total 1993 revenues, and seven
percent of Western Resources' operating income. The net proceeds
from the sale will lower long- and short-term debt. The sale price
of approximately $400 million includes the assumption of on- and
off-balance sheet liabilities.
In October 1993, Southern Union acquired the Rio Grande Valley
Gas operations adding 75,000 customers. "Southern Union will
continue to seek growth opportunities while maintaining our
commitment to deliver safe, reliable, low-cost energy to our
customers," said Lindemann.
Southern Union will operate the Missouri properties as Missouri
Gas Energy, a Missouri-based division headquartered in Kansas City.
Approximately 1,000 employees, formerly with Gas Service in
Missouri, will become Missouri Gas Energy employees. Western
Resources will decrease employment at its Topeka corporate
headquarters by approximately 100 people by the end of 1994. This
decrease accounts for positions that provided support for the
Missouri natural gas operations.
Southern Union Company is a publicly owned company headquartered
in Austin, Texas primarily engaged in the business of natural gas
distribution to more than 935,000 customers in Texas, the Oklahoma
Panhandle, and western and central Missouri.
Western Resources, and its operating companies, KPL, KG&E, and
Gas Service, provides natural gas service to 633,000 customers in
Kansas and northern Oklahoma, and electric service to 585,000
customers in eastern and central Kansas.
# # #
