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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 31, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VERITAS DGC INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 76-0343152
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
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3701 KIRBY DRIVE, SUITE 112
HOUSTON, TEXAS 77098-3982
(713) 512-8300
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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Name, Address, Including Zip Code, and
Telephone Number, Including Area Copy of Communications to:
Code, of Agent for Service:
T. WILLIAM PORTER
ANTHONY TRIPODO PORTER & HEDGES, L.L.P.
3701 KIRBY DRIVE, SUITE 112 700 LOUISIANA, 35TH FLOOR
HOUSTON, TEXAS 77098-3982 HOUSTON, TEXAS 77002-2764
(713) 226-0600 (713) 512-8300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time pursuant to Rule 415 after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with a dividend or
interest reinvestment plan, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTERED(2)(3) PRICE PER UNIT OFFERING PRICE(4) REGISTRATION FEE
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Debt.......................
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Preferred Stock, $.01 per
share....................
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Common Stock, $.01 per
share(5).................
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Total............ $200,000,000(6) (6) $200,000,000(7)(8) $55,600
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(1) Also includes such indeterminate number of shares of Common Stock and/or
Preferred Stock and/or amount of Debt Securities as may be issued upon
conversion of any Preferred Stock or Debt Securities that provide for
conversion into other Securities.
(2) Or, if any Debt Securities are issued with original issue discount, such
greater amount as shall result in an aggregate public offering price of
$200,000,000.
(3) In U.S. dollars or the equivalent thereof in foreign currency or currency
units.
(4) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o).
(5) Includes preferred stock purchase rights associated with the Common Stock.
Since no separate consideration is payable for such rights, the registration
fee for such securities is included in the fee for the Common Stock.
(6) Pursuant to General Instruction II.D of Form S-3, not specified as to each
class and/or series of Securities to be registered.
(7) Represents the aggregate (i) issue price of any Debt Securities issued with
original issue discount, (ii) principal amount of all other Debt Securities,
(iii) liquidation preference of any Preferred Stock, and (iv) amount used
when computing the registration fee pursuant to Rule 457(c) for Common
Stock.
(8) No separate consideration will be received for any Debt Securities,
Preferred Stock or Common Stock issuable upon conversion of Debt Securities
or Preferred Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SEC IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE
SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN
ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PRELIMINARY PROSPECTUS
VERITAS LOGO
$200,000,000
VERITAS DGC INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. This means:
- we may issue debt securities, preferred stock and common stock covered by
this prospectus from time to time;
- we will provide a prospectus supplement each time we issue the
securities; and
- the prospectus supplement will provide specific information about the
terms of that offering and also may add, update or change information
contained in this prospectus.
The Veritas DGC common stock trades on the New York Stock Exchange under
the symbol "VTS" and on the Toronto Stock Exchange under the symbol "VER."
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 3 OF THIS
PROSPECTUS.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Subject to completion, dated August 31, 1999.
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YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED
ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN
OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THESE
DOCUMENTS.
TABLE OF CONTENTS
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Where You Can Find More Information......................... 3
The Company................................................. 3
Forward-looking Statements.................................. 3
Risk Factors................................................ 3
Use of Proceeds............................................. 5
Ratio of Earnings to Fixed Charges.......................... 5
Description of Debt Securities.............................. 5
Description of Capital Stock................................ 9
Plan of Distribution........................................ 13
Legal Matters............................................... 14
Experts..................................................... 14
Incorporation of Certain Documents by Reference............. 15
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 registering
the securities we are offering. This prospectus, which is a part of the
registration statement, omits certain information included in the registration
statement.
You may read and copy the registration statement, including the attached
exhibits, and any reports, statements or other information that we file at the
SEC's public reference room in Washington, D.C. You may also obtain information
about Veritas DGC from the following regional offices of the SEC: Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and
7 World Trade Center, 13th Floor, New York, New York 10048. Veritas DGC
maintains an Internet site at http://www.veritasdgc.com that contains
information about its business.
We file annual reports, quarterly reports, proxy statements, and other
information with the SEC. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. Copies of such
material can be obtained by mail from the Public Reference Section of the SEC at
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 at prescribed
rates. Our SEC filings are also available to the public on the SEC's home page
on the Internet at http://www.sec.gov.
THE COMPANY
We are a leading provider of seismic data acquisition, data processing and
multi-client data surveys and information services to the oil and gas industry
in selected markets worldwide. Oil and gas companies utilize seismic data for
the determination of suitable locations for drilling exploratory wells and,
increasingly, in reservoir management for the development and production of oil
and gas reserves. We acquire seismic data on land and in marine and transition
zone environments, and process data acquired by our own crews and crews of other
operators. We acquire seismic data both on an exclusive contractual basis for
our customers and on our own behalf for licensing to multiple customers on a
non-exclusive basis. Veritas DGC was incorporated in Texas in 1965 and was
reincorporated in Delaware in 1969. Our principal offices are located at 3701
Kirby Drive, Houston, Texas 77098, and our telephone number is (713) 512-8300.
FORWARD-LOOKING STATEMENTS
The statements included in this prospectus, other than statements of
historical facts, are forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. These statements include statements incorporated by reference to other
Veritas DGC documents filed with the SEC. Forward-looking statements include,
among other things, business strategy and expectations concerning industry
conditions, market position, future operations, margins, profitability,
liquidity and capital resources. Forward-looking statements generally can be
identified by the use of terminology such as "may," "will," "expect," "intend,"
"estimate," "anticipate" or "believe" or the negative thereof or variations
thereon or similar terminology.
Although we believe that the expectations reflected in such statements are
reasonable, we can give no assurance that such expectations will be correct. You
are cautioned not to place undue reliance on these forward-looking statements,
which speak only as of the date of this prospectus. Our operations are subject
to a number of uncertainties, risks and other influences, many of which are
outside our control and any one of which, or a combination of which, could cause
our actual results of operations to differ materially from the forward-looking
statements. Important factors that could cause actual result to differ
materially from our expectations are disclosed in "Risk Factors" and elsewhere
in this prospectus.
RISK FACTORS
An investment in Veritas DGC securities is subject to a number of risks.
You should carefully consider the following factors and other information in
this prospectus before deciding to buy our securities.
FLUCTUATIONS IN ENERGY INDUSTRY SPENDING COULD ADVERSELY AFFECT OUR BUSINESS
As a provider of seismic services, our business is substantially dependent
on the level of capital expenditures by oil and gas companies. As a result of
the recent fluctuation in hydrocarbon commodity prices, the level of overall oil
and gas industry activity has declined from levels experienced in recent years.
If our
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customers' capital spending decreases in line with overall recent industry
trends, it would likely have a significant adverse effect upon the demand for
our services and our results of operations and cash flow.
INTENSE PRICE COMPETITION IN A SLOW MARKET COULD ADVERSELY AFFECT OUR BUSINESS
Competition among seismic contractors historically is and will continue to
be intense. Competitive factors in recent years have included price, crew
experience, equipment availability, technological expertise and reputation for
quality and dependability. Certain competitors operate more data acquisition
crews than us and have substantially greater financial and other resources.
These larger and better financed operators could enjoy an advantage over us if
the competitive environment for contract awards shifts to one characterized
principally by intense price competition.
OUR ABILITY TO SERVICE DEBT DEPENDS ON MANY FACTORS BEYOND OUR CONTROL
Our ability to make payments on and to refinance our indebtedness, and to
fund planned capital expenditures will depend on our ability to generate cash in
the future. This, to a certain extent, is subject to general economic,
financial, competitive, legislative, regulatory and other factors that are
beyond our control.
We cannot assure you that our business will generate sufficient cash flow
from operations to service our outstanding debt, that currently anticipated cost
savings and operating improvements will be realized or that future borrowings
will be available to us under our credit facility in an amount sufficient to
enable us to pay our indebtedness or to fund our other liquidity needs. We may
need to refinance all or a portion of our indebtedness on or before maturity. We
cannot assure you that we will be able to refinance any of our indebtedness,
including our credit facility, on commercially reasonable terms or at all.
MULTI-CLIENT DATA LIBRARY COULD BECOME IMPAIRED DUE TO WEAK DEMAND OR
TECHNOLOGICAL OBSOLESCENCE
We have invested significant amounts in acquiring and processing
multi-client data, and expect to continue doing so for the foreseeable future.
Although we have typically recovered all the costs of such surveys, there is no
assurance that we will continue to be able to do so in the future.
Technological, regulatory or other industry or general economic developments
could render all or portions of our library of multi-client data obsolete or
otherwise impair its value.
HIGH LEVELS OF FIXED COSTS COULD RESULT IN OPERATING LOSSES
Our business has high fixed costs and downtime or low productivity due to
reduced demand, weather interruptions, equipment failures or other causes, and
can result in significant operating losses. The operation of a seismic crew
involves utilization of equipment requiring a significant investment. Changes in
technology, which have resulted in an increase in the amount of seismic data
acquired, have required a greater level of capital expenditures. Further, rapid
changes in technology make ongoing capital reinvestment a significant cost of
doing business. Combined, this requires that seismic companies recover the cost
of equipment over a relatively short period of time. As technology continues to
change rapidly, low utilization rates may impact the ability to recover the cost
of the capital investment in a timely manner.
FUTURE TECHNOLOGICAL ADVANCES COULD IMPAIR OPERATING ASSETS OR REQUIRE
SUBSTANTIAL UNBUDGETED CAPITAL EXPENDITURES
Seismic data acquisition and processing is a capital intensive business.
The development of seismic data acquisition and processing equipment has been
characterized by rapid technological advancements in recent years. This trend is
expected to continue. Manufacturers of seismic equipment may develop new systems
that have competitive advantages over systems now in use. Such development could
render our current equipment obsolete, requiring significant unplanned capital
expenditures to maintain our competitive position. Under such circumstances,
there can be no assurance that we would be able to obtain necessary financing on
favorable terms.
THE TRADING PRICE OF OUR SECURITIES COULD BE SUBJECT TO SIGNIFICANT FLUCTUATIONS
The trading price of our securities fluctuate. Factors such as fluctuations
in our financial performance, and that of our competitor's, as well as general
market conditions could have a significant impact on the future trading prices
of our securities. The trading prices may be affected by weakness in oil prices,
changes in
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interest rates and other factors. There can be no assurance that these factors
will not have an adverse affect on the trading prices of our securities.
OUR BUSINESS IS SUBJECT TO SEASONAL FLUCTUATIONS
Our seismic operations and quarterly financial results historically have
been subject to seasonal fluctuation. In addition to seasonality, we
historically have experienced quarterly fluctuations in operating results.
Operating results in any fiscal quarter may vary as a result of the magnitude of
certain contracts for the acquisition or sale of data, customers' budgetary
cycles, and seismic data sales occurring as a result of offshore lease sales.
WE OPERATE UNDER HAZARDOUS CONDITIONS
Our seismic data acquisition activities involve operating under extreme
weather and other hazardous conditions. These operations are subject to risks of
loss to property and injury to personnel from such causes as fires and
accidental explosions. We carry insurance against these risks in amounts we
consider adequate. We may not, however, be able to obtain insurance against
certain risks or for certain equipment located from time to time in certain
areas of the world.
OUR BUSINESS IS SUBJECT TO GOVERNMENTAL REGULATION
Our operations will be subject to a variety of federal, provincial, state,
foreign and local laws and regulations, including environmental laws. We will
invest financial and managerial resources to comply with these laws and related
permit requirements in our operations. In recent years, an increased number of
our data acquisition contracts have provided for customers to obtain all
necessary permits. Customers' failure to timely obtain the required permits may
result in crew downtime and operating losses. In the past, our cost of complying
with governmental regulation has not been material. Because laws and regulations
change frequently, we cannot predict the impact of government regulations on our
future operations. The adoption of laws and regulations which have the effect of
curtailing exploration by oil and gas companies could adversely affect our
operations by reducing the demand for our geophysical services.
USE OF PROCEEDS
Except as otherwise described in any prospectus supplement, the net
proceeds from the sale of securities will be used for general corporate
purposes, which may include working capital, capital expenditures, possible
acquisitions and repurchases and redemptions of securities.
RATIO OF EARNINGS TO FIXED CHARGES
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NINE MONTHS YEARS ENDED JULY 31,
ENDED ---------------------------------
APRIL 30, 1999 1998 1997 1996 1995 1994
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Ratio of Earnings to Fixed Charges............ 2.18 4.64 2.52 1.30 2.01 1.05
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For these ratios, earnings consist of income, before income taxes and
equity in (earnings) loss from equity investees, and fixed charges, adjusted for
capitalized interest. There was no distributed income from equity investees for
any of the periods presented. Fixed charges consist of interest expense,
capitalized interest, amortization of debt issuance expense and the portion of
rental expense representative of an interest factor.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The debt securities will be:
- our direct unsecured general obligations;
- either senior debt securities or subordinated debt securities; and
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- will be issued under one or more separate indentures.
We are a holding company that conducts all operations through our
subsidiaries. Holders of debt securities generally will have a junior position
to claims of creditors of our subsidiaries including trade creditors, debt
holders, secured creditors, taxing authorities, guaranty holders and any
preferred stockholders. At April 30, 1999, we did not have any outstanding
preferred stock and we and our subsidiaries had $135.3 million of outstanding
debt.
We will issue senior debt securities under a senior indenture and
subordinated debt securities under a subordinated indenture. We have summarized
selected provisions of the indentures below. The summary is not complete. The
forms of the indentures have been filed as exhibits to the registration
statement, and you should read the indentures for provisions that may be
important to you. In the summary, we have included references to section numbers
of the indentures so that you can easily locate those provisions.
- The indentures do not limit the aggregate principal amount of debt
securities that can be issued thereunder. (Section 301)
- Debt securities may be issued in one or more series, each in an aggregate
principal amount authorized by Veritas DGC before issuance, and may be in
any currency or currency unit that we may designate. (Section 301)
- Debt securities of a series may be issued in fully registered form and
may be in global form. (Sections 201 and 203)
- Senior debt securities will rank equally with all of our other senior
debt.
- Subordinated debt securities will have a junior position to all of our
senior debt. (Section 1301)
- Debt securities will be issued in denominations of $1,000 each or
multiples thereof, unless otherwise specified in a prospectus supplement.
(Section 302)
- Debt securities may be sold at a discount (which may be substantial)
below their stated principal amount, bearing no interest or interest at a
rate below market rates.
- The indentures do not limit the amount of other unsecured indebtedness or
securities that we can issue.
A prospectus supplement and a supplemental indenture relating to any series
of debt securities being offered will include specific terms relating to the
offering. These terms will include some or all of the following:
- title and type of debt securities;
- total principal amount;
- dates on which the principal of, and premium, if any, is payable;
- interest rate (or method of determination);
- date from which interest will accrue;
- interest payment dates, if any;
- optional redemption periods;
- sinking fund or other provisions that would obligate us to repurchase or
otherwise redeem the debt securities;
- currency in which payment of principal and interest shall be made, if
other than United States dollars or the currency in which the debt
securities are stated to be payable;
- terms of conversion or exchange if the debt securities will be
convertible into shares of common stock or exchangeable for other of our
securities;
- additional means or conditions to discharge the debt securities;
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- changes to or additional events of default or covenants;
- special tax implications of the debt securities; and
- other specific terms of the debt securities. (Section 301)
SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will be subordinated and junior
in right of payment to the prior payment in full of all senior debt. (Section
1301) The subordinated indenture provides that no payment of principal, interest
or any premium on the subordinated debt securities may be made in the event:
- we fail to pay the principal, interest, any premium or any other amounts
on any senior debt when due; or
- of any insolvency, bankruptcy or similar proceeding involving us or our
property. (Sections 1302 and 1303)
Senior debt is defined to include all indebtedness including our guarantees
for money we borrowed, not expressed to be subordinate or junior in right of
payment to any of our other indebtedness. (Section 101) The subordinated
indenture will not limit the amount of senior debt that we may incur.
EVENTS OF DEFAULT
The following are events of default under each indenture:
- failure to pay principal or any premium on any debt security when due;
- failure to pay any interest on any debt security when due, continued for
30 days;
- failure to deposit any mandatory sinking fund payment when due, continued
for 30 days;
- failure to perform any other covenant in the indenture that continues for
90 days after written notice;
- certain events of bankruptcy, insolvency or reorganization; and
- any other event of default as may be specified with respect to debt
securities of such series. (Section 501)
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities. (Section 502) The trustee may withhold notice to the holders of debt
securities of any default (except in the payment of principal, interest or any
premium) if the trustee or Veritas DGC's board of directors considers
withholding of notice to be in the best interest of the holders. (Section 602)
ACCELERATION OF DEBT UPON AN EVENT OF DEFAULT
If an event of default occurs:
- Either the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities may declare the principal amount of all
the debt securities of the applicable series to be due and payable
immediately. (Section 502)
- If this happens, subject to certain conditions, the holders of a majority
in principal amount of the outstanding debt securities of such series can
void the declaration. These conditions include the requirement that we
have paid or deposited with the trustee a sum sufficient to pay all
overdue principal, premiums (if any) and interest payments on the series
of debt securities subject to the default. (Section 502)
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If an event of default occurs due to certain events of bankruptcy,
insolvency or reorganization, the principal amount of the outstanding debt
securities of all series will become immediately due and payable without any
declaration or other act on the part of either trustee or any holder. (Section
502)
Depending on the terms of our indebtedness, an event of default under an
indenture may cause a cross default on such other indebtedness.
DUTIES OF TRUSTEE
Other than its duties in the case of default, the trustee is not obligated
to exercise any of its rights or powers under any indenture at the request,
order or direction of any holders unless the holders offer the trustee
reasonable indemnity. (Section 603)
If the holders provide reasonable indemnification, the holders of a
majority of principal amount of any series of debt securities may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any power conferred upon the trustee for any series
of debt securities. (Section 512)
COVENANTS
Under the indentures, we will:
- pay the principal, interest and any premium on the debt securities when
due;
- maintain a place of payment;
- deposit sufficient funds with any payment agent on or before the due date
for the principal, interest or any premium; and
- deliver a report to the trustee after the end of each fiscal year
reviewing our activities and performance under the indentures, and
stating whether we are in default under the indentures. (Sections 1001,
1002, 1003 and 1005)
MODIFICATION OF INDENTURES
We may modify the holders rights and obligations under the indenture, if we
first obtain the consent of the holders of a majority in aggregate principal
amount of the outstanding debt securities of each series effected by the
modification. Except, all holders must consent to modifications that:
- change the principal or interest payment terms;
- impair their right to sue to enforce payments;
- change subordination provisions in a manner adverse to them; or
- reduce the majority requirement for modifications effective against any
holder without its consent. (Section 902)
Each Indenture provides that we and the trustee may, without the consent of
any holders, enter into supplemental indentures for the following purposes:
- adding to our covenants;
- adding additional events of default;
- establishing the form or terms of debt securities; or
- curing ambiguities or inconsistencies in the indenture, provided that
such action to cure ambiguities or inconsistencies shall not adversely
affect the interests of the holders in any material way. (Section 901)
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CONSOLIDATION, MERGER AND SALE OF ASSETS
Each indenture generally permits a consolidation or merger between us and
another company. They also permit our sale of all or substantially all of our
property and assets. If this happens, the remaining or acquiring company will
assume all of our responsibilities and liabilities under the indentures,
including the payment of all amounts due on the debt securities and performance
of the covenants in the indentures. (Sections 801 and 802)
We will only consolidate or merge with or into any other company or sell
all or substantially all of our assets according to the terms and conditions of
the indentures. The remaining or acquiring company will be substituted for us in
the indentures with the same effect as if it had been an original party to the
indenture. If we sell all or substantially all of our assets, we shall be
released from all our liabilities and obligations under any indenture and under
the debt securities. (Section 801 and 802)
DISCHARGE AND DEFEASANCE
We will be discharged from our obligations under the debt securities of any
series if we:
- deposit with the trustee enough cash or government securities to pay the
principal, interest, any premium and any other sums due to the stated
maturity date or redemption date of the debt securities of the series;
- request the trustee to discharge us from our obligations on that series
of debt securities; and
- comply with any additional conditions that may be specified in an
indenture supplement regarding defeasance of that series of debt
securities.
If this happens, the holders of the debt securities of the series will not
be entitled to the benefits of the indenture except for registration, transfer
and exchange of debt securities and replacement of lost, stolen or mutilated
debt securities. However, the Company's obligations will be revived and
reinstated if the trustee is unable to apply our deposited amounts because of
any legal proceeding, order or judgment. (Sections 401, 403 and 404)
PAYMENT AND PAYING AGENTS
Unless otherwise specified in a prospectus supplement, we will pay
principal, interest and any premium on fully registered securities at the office
of the paying agent designated by us from time to time. We have the option to
make interest payments by check mailed to the person in whose name the debt
securities are registered on the day specified in the indentures or any
prospectus supplement. Holders may transfer or exchange fully registered
securities at the corporate trust office of the trustee or at any other office
or agency maintained by us for such purposes. The holder will not be charged for
making a transfer or exchange, except for any required tax or governmental
charge. (Sections 305, 307, 1001 and 1002)
GLOBAL SECURITIES
The debt securities of a series may be issued in the form of one or more
global certificates that will be deposited with a depositary identified in a
prospectus supplement. Beneficial interests in global certificates will be shown
on, and transfers of global certificates will be effected only through, records
maintained by the depositary. (Section 203).
DESCRIPTION OF CAPITAL STOCK
Our restated certificate of incorporation authorizes 40,000,000 ordinary
shares, par value $0.01 per share. Ordinary shares consist of common stock, a
series of Veritas Energy Services special voting stock, and a series of Enertec
special voting stock. Our restated certificate of incorporation also authorizes
1,000,000 shares of preferred stock, par value $0.01 per share.
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COMMON STOCK
Voting Rights. The holders of the common stock are entitled to one vote for
each share held of record in the election of directors and on all other matters
submitted to a vote of stockholders. No pre-emptive rights, conversion rights,
redemption rights or sinking fund provisions are applicable to the common stock.
The common stock does not have cumulative voting rights. Accordingly, the
holders of more than 50% of the shares may elect all of the directors and, in
that event, the holders of the remaining shares will not be able to elect any
directors.
Dividends. Common stockholders may receive dividends when declared by the
board of directors. Dividends may be paid in cash, stock or another form.
However, certain of our existing debt agreements contain covenants that
currently restrict us from paying dividends.
Fully Paid. All outstanding shares of common stock are fully paid and
non-assessable. Any additional common stock we issue will also be fully paid and
non-assessable.
Other. We will notify common stockholders of any stockholders' meetings
according to applicable law. If we liquidate, dissolve or wind up our business,
either voluntarily or not, common stockholders will share equally in the assets
remaining after we pay our creditors and preferred stockholders.
Transfer Agent and Registrar. Our transfer agent and registrar is
ChaseMellon Shareholder Services, L.L.C., Dallas, Texas.
SPECIAL VOTING STOCK
Single shares of Veritas Energy Services special voting stock and Enertec
special voting stock are each authorized and outstanding as a series of ordinary
shares. The Veritas Energy Services special voting share was issued in
connection with the combination of Digicon Inc. (Veritas DGC's former name) and
Veritas Energy Services Inc. in August of 1996. The Enertec special voting share
was issued in connection with the combination of Veritas DGC, Veritas Energy
Services and Enertec Resources Inc. in September 1999.
These special voting shares possess a number of votes equal to the number
of outstanding Veritas Energy Services exchangeable shares and Veritas Energy
Services class A exchangeable shares, series 1 that are not owned by Veritas DGC
or any of its subsidiaries. In any matter submitted to Veritas DGC stockholders
for a vote, each holder of a Veritas Energy Services exchangeable share has the
right to instruct a trustee as to the manner of voting for one of the votes
comprising the Veritas Energy Services special voting share for each Veritas
Energy Services exchangeable share owned by the holder. Likewise, in any matter
submitted to Veritas DGC stockholders for a vote, each holder of a Veritas
Energy Services class A exchangeable share, series 1 has the right to instruct a
trustee as to the manner of voting for one of the votes comprising the Enertec
special voting share for each Veritas Energy Services class A exchangeable
shares, series 1 owned by the holder. The Veritas Energy Services exchangeable
shares and the Veritas Energy Services class A exchangeable shares, series 1 are
convertible on a one-for-one basis into shares of the common stock and have
rights identical to the common stock.
PREFERRED STOCK
There are no shares of preferred stock presently outstanding. A series of
400,000 shares of preferred stock has been designated for use in connection with
the rights plan (the rights plan is explained below). Our board of directors
can, without approval of our stockholders, issue one or more series of preferred
stock. If we offer preferred stock, the board will determine number of shares
and the rights, preferences and limitations of each series. This information
will be described in a prospectus supplement, including:
- specific designations;
- number of shares;
- liquidation value;
- dividend rights;
10
<PAGE> 12
- liquidation and redemption rights;
- voting rights;
- other rights, including conversion or exchange rights, if any; and
- any other specific terms.
In some cases, the issuance of preferred stock could delay a change in control
of Veritas DGC and make it harder to remove present management. Under certain
circumstances, preferred stock could also restrict dividend payments to holders
of our common stock.
The transfer agent, registrar, and dividend disbursement agent for a series
of preferred stock will be named in a prospectus supplement. The registrar for
shares of preferred stock will send notices to stockholders of any meetings at
which holders of the preferred stock have the right to elect directors or to
vote on any other matter.
RIGHTS PLAN
General. Under the rights plan, each share of Veritas DGC common stock has
attached to it one right. The right is represented by a certificate which is the
same certificate representing the Veritas DGC common stock. Each right entitles
the registered holder to purchase from Veritas DGC one one-thousandth of a share
of series A junior participating preferred stock of Veritas DGC. The series A
preferred stock has a par value of $0.01 per share and is sold at a purchase
price of $100. The purchase price is subject to adjustment. Until the
distribution date, the rights will be transferred with and only with the Veritas
DGC common stock certificates. The rights are not exercisable until after the
distribution date and are subject to termination of any extended redemption
periods described below. The rights expire at the close of business on May 15,
2007, unless they are earlier redeemed by Veritas DGC. The holder of unexercised
rights has no rights as a stockholder of Veritas DGC, including, without
limitation, the right to vote or to receive dividends.
Separation of Rights from Veritas DGC Common Stock. The rights will
separate from Veritas DGC common stock and a distribution date will occur upon
the earlier of two possible times. The first such time is 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "acquiring person") has acquired, or has the right to
acquire, the ownership of 15% or more of the outstanding shares of Veritas DGC
common stock (the "stock acquisition date"). The second possible time is 10
business days following the commencement of a tender or exchange offer which
would result in a person or group owning 15% or more of such outstanding shares
of the Veritas DGC common stock (the "tender offer date"). The board of
directors of Veritas DGC may set a later tender offer date if a majority of the
continuing directors agree to do so and there are five continuing directors then
in office.
Continuing Director. A continuing director is any member of the board of
directors of Veritas DGC who was a member of the board on May 15, 1997, or who
was elected to the board after May 15, 1997 and was recommended or approved by a
majority of at least five continuing directors. An acquiring person, or an
affiliate or associate of an acquiring person, or such representative is not a
continuing director.
Triggering Events. Each holder of a right (other than the acquiring person,
certain related parties and transferees) will have the right to purchase, upon
exercise of a right, a one-thousandth fractional share interest in series A
preferred stock if, among other things:
- Veritas DGC is the surviving corporation in a merger or other business
combination with an acquiring person; or
- any person shall become the beneficial owner of more than 15% of the
outstanding shares of the Veritas DGC common stock, except:
- pursuant to certain consolidations or mergers involving Veritas DGC or
sales or transfers of the combined assets or earning power of Veritas
DGC and its subsidiaries; or
11
<PAGE> 13
- pursuant to an offer for all outstanding shares of the Veritas DGC
common stock at a price and upon terms and conditions which a majority
of the continuing directors determines to be in the best interests of
Veritas DGC and its stockholders).
Each of the one-thousandth fractional share interests in series A preferred
stock is equivalent to a share of Veritas DGC common stock (or, in certain
circumstances, cash, property or other securities of Veritas DGC) having a value
equal to two times the exercise price of the right. For example, at the exercise
price of $100 per right, each right not owned by an acquiring person (or by
certain related parties and transferees) following a triggering event set forth
above would entitle its holder to purchase $200 worth of series A preferred
stock (or other consideration, as noted above) for $100. Assuming that the
series A preferred stock had a per share market price of $40 at such time (with
each one-thousandth share of series A preferred stock valued at one share of
common stock), the holder of each valid right would be entitled to purchase five
one one-thousandth shares of the series A preferred stock for $100. Rights are
not exercisable following the occurrence of any of the triggering events
described above until the rights are no longer redeemable by Veritas DGC as
described below. Notwithstanding any of the foregoing, following the occurrence
of any of the triggering events described in this paragraph, all rights that
are, or (under certain circumstances specified in the rights plan) were,
beneficially owned by any acquiring person will be null and void.
If at any time following the stock acquisition date:
- Veritas DGC is acquired in a merger or other business combination
transaction in which Veritas DGC is not the surviving corporation;
- Veritas DGC is the surviving corporation in a consolidation or merger
pursuant to which all or part of the outstanding shares of Veritas DGC
common stock are changed into or exchanged for stock or other securities
of any other person or cash or any other property; or
- more than 50% of the combined assets or earning power of Veritas DGC and
its subsidiaries is sold or transferred (in each case other than certain
consolidations with, mergers with and into, or sales of assets or earning
power by or to subsidiaries of Veritas DGC as specified in the rights
agreement);
each holder of a right (except rights that previously have been voided as set
forth above) will have the right to exercise and receive common stock of the
acquiring company having a value equal to two times the exercise price of the
right. The events described in this paragraph and in the preceding paragraph are
referred to as the triggering events.
Redemption of Rights. At any time until ten business days following the
stock acquisition date, Veritas DGC may redeem the rights in whole, but not in
part, at a price of $0.001 per right. The Veritas DGC board may set a later date
to redeem the rights if a majority of the continuing directors then in office
agree. Redemption of the rights is payable in cash, shares of Veritas DGC common
stock or other consideration deemed appropriate by the board of directors.
Rights may not be redeemed during the 180 day period after any person becomes an
acquiring person unless the redemption is approved by a majority of continuing
directors.
Anti-takeover Effects. The rights have certain anti-takeover effects. They
may reduce or eliminate:
- two-tiered or other partial offers that do not offer fair value for all
Veritas DGC common stock;
- the accumulation by a third party of 15% or more of the Veritas DGC
common stock in open-market or private purchases in order to influence or
control the business and affairs of Veritas DGC without paying an
appropriate premium for a controlling position in Veritas DGC; and
- the accumulation of shares of Veritas DGC common stock by third parties
in market transactions for the primary purpose of attempting to cause
Veritas DGC to be sold.
The rights will also cause the substantial dilution of shareholder voting
strength to a person or group that attempts to acquire Veritas DGC in a manner
defined as a triggering event. This is not so if the acquiring
12
<PAGE> 14
person's offer is conditioned on a substantial number of rights being acquired.
The rights should not affect any prospective offeror who is willing:
- to make an offer for all outstanding shares of Veritas DGC common stock
and other voting securities at a price and terms that are in the best
interests of Veritas DGC and its stockholders as determined by the board
of directors; or
- to negotiate with the board of directors because as part of any
negotiated transaction the rights would either be redeemed or otherwise
made inapplicable to the transaction.
The rights should also not interfere with any merger or other business
combination approved by the board of directors since the board may, at its
option, choose to redeem all, but not less than all, of the then outstanding
rights at the $.001 redemption price. The board may exercise this option at any
time until ten business days following the stock acquisition date.
PLAN OF DISTRIBUTION
The specific terms of the particular securities to be issued will be set
forth in a prospectus supplement that will be delivered together with this
prospectus. In the case of common stock, a prospectus supplement would include
the number of shares to be issued. In the case of debt securities, the
prospectus supplement would include, where applicable:
- ranking as senior or subordinated debt securities;
- total principal amount;
- maturity;
- interest rate (or method of determination);
- interest payment dates, if any;
- terms for optional or mandatory redemption or repurchase, or payment of
additional amounts or any sinking fund provisions;
- conversion or exchange terms; and
- any other specific terms of such debt securities.
In the case of preferred stock, the information that will be set forth in a
prospectus supplement, will include:
- specific designations;
- number of shares;
- liquidation value;
- dividend rights;
- liquidation and redemption rights;
- voting rights;
- other rights, including conversion or exchange rights, if any; and
- any other specific terms.
We may sell the securities through underwriters, agents or dealers or
directly to purchasers. A prospectus supplement will set forth the terms of each
specific offering, including the name or names of any underwriters or agents,
the purchase price of the securities and the proceeds to us from such sales, any
delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, any initial
13
<PAGE> 15
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering and, if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth on the cover of such
prospectus supplement. Unless otherwise set forth in the prospectus supplement,
the underwriters will be obligated to purchase all the securities if any are
purchased.
We may sell the securities directly or through agents we designate from
time to time. Any agent involved in the offer or sale of the securities covered
by this prospectus will be named, and any commissions payable by us to an agent
will be set forth, in a prospectus supplement relating thereto. Unless otherwise
indicated in a prospectus supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If dealers are used in any of the sales of securities covered by this
prospectus, we will sell those securities to dealers as principals. The dealers
may then resell the securities to the public at varying prices the dealers
determine at the time of resale. The names of the dealers and the terms of the
transactions will be set forth in a prospectus supplement.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of
1933 with respect to any sale thereof. The terms of any such sales will be
described in a prospectus supplement.
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. These contracts will be
subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth the commission payable for solicitation of
such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act of 1933, or to contribution with
respect to payments which such agents, dealers or underwriters may be required
to make in respect thereof. Agents, dealers and underwriters may be customers
of, engage in transactions with, or perform services on our behalf.
LEGAL MATTERS
Certain legal matters in connection with the validity of the common stock,
preferred stock and debt securities will be passed on for Veritas DGC by Porter
& Hedges, L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K of Veritas DGC Inc. for the two
years ended July 31, 1998, have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
The consolidated financial statements of Veritas DGC Inc. for the year
ended July 31, 1996 incorporated by reference from the Veritas DGC Inc. Annual
Report on Form 10-K for the year ended July 31, 1998 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated by reference, and has been so incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and
auditing.
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<PAGE> 16
The consolidated financial statements of Veritas Energy Services Inc., as
of and for the nine months ended July 31, 1996, not separately incorporated by
reference in this prospectus, have been audited by PricewaterhouseCoopers LLP,
Chartered Accountants, whose report thereon is incorporated in this prospectus
by reference to the Veritas DGC Inc. Annual Report on Form 10-K for the year
ended July 31, 1998. Such consolidated financial statements, to the extent they
have been included in the consolidated financial statements of Veritas DGC Inc.
as of and for the year ended July 31, 1996, have been so included in reliance on
the report of such independent accountants given on the authority of said firm
as experts in auditing and accounting.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus incorporates documents by reference which are not presented
in or delivered with it. This means that Veritas DGC can disclose certain
information by referring a reader to certain documents. These documents (other
than exhibits to such documents unless specifically incorporated by reference)
are available, without charge, upon written or oral request directed to Larry L.
Worden, Veritas DGC Inc., at Veritas DGC's principal executive offices located
at 3701 Kirby Drive, Suite 112, Houston, Texas 77098-3982; telephone (713)
512-8300.
The following documents, which have been filed by Veritas DGC with the SEC
pursuant to the Exchange Act (File No. 1-7427), are incorporated in this
prospectus by reference and shall be deemed to be a part hereof:
(a) Annual Report on Form 10-K for the year ended July 31, 1998;
(b) Current Report on Form 8-K, dated November 12, 1998;
(c) Quarterly Reports on Form 10-Q for the quarters ended October 31,
1998, January 31, 1999, and April 30, 1999; and
(d) All documents filed by Veritas DGC with the SEC pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date of this prospectus and prior to the termination of the Offer to
Exchange.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein
or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
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<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated maximum expenses payable by the Registrant in connection with
the offering of the Securities to be registered and offered hereby are as
follows:
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 55,600
Printing Expenses........................................... 75,000
Legal Fees and Expenses..................................... 75,000
Accounting Fees and Expenses................................ 25,000
Trustee and/or Transfer Agency Fees......................... 10,000
Miscellaneous............................................... 9,400
--------
Total............................................. $250,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action.
In a suit brought to obtain a judgment in the corporation's favor, whether
by the corporation itself or derivatively by a stockholder, the corporation may
only indemnify for expenses, including attorney's fees, actually and reasonably
incurred in connection with the defense or settlement of the case, and the
corporation may not indemnify for amounts paid in satisfaction of a judgment or
in settlement of the claim. In any such action, no indemnification may be paid
in respect of any claim, issue or matter as to which such persons shall have
been adjudged liable to the corporation except as otherwise provided by the
Delaware Court of Chancery or the court in which the claim was brought. In any
other type of proceeding, the indemnification may extend to judgments, fines and
amounts paid in settlement, actually and reasonably incurred in connection with
such other proceeding, as well as to expenses (including attorneys' fees).
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interest of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable to
criminal actions and to actions brought by or in the name of the corporation.
The determination as to whether a person seeking indemnification has met the
required standard of conduct is to be made (i) by a majority vote of a quorum of
disinterested members of the board of directors, or (ii) by independent counsel
in a written opinion, if such a quorum does not exist or if the disinterested
directors so direct, or (iii) by the stockholders.
The Restated Certificate of Incorporation (with Amendments) and Bylaws of
Veritas DGC require Veritas DGC to indemnify Veritas DGC's directors and
officers to the fullest extent permitted under Delaware law. Veritas DGC's
Restated Certificate of Incorporation (with Amendments) limits the personal
liability of a director to Veritas DGC or its stockholders to damages for breach
of the director's fiduciary duty.
Veritas DGC has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the Registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws.
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<PAGE> 18
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
1.1+ -- Form of Underwriting Agreement or comparable distribution
agreement, if any.
3.1 -- Restated Certificate of Incorporation (with Amendments)
of Digicon Inc. dated August 30, 1996 (Incorporated by
reference to Exhibit 2.1 of Digicon Inc.'s Current Report
on Form 8-K filed September 16, 1996).
3.2 -- Certificate of Ownership and Merger of New Digicon Inc.
and Digicon Inc. (Incorporated by reference to Exhibit
3-B to Digicon's Registration Statement No. 33-43873,
dated November 12, 1991).
3.3 -- Bylaws of New Digicon Inc. dated June 24, 1991.
(Incorporated by referenced to Exhibit 3-C to Digicon's
Registration Statement No. 33-43873, dated November 12,
1991).
3.4 -- Form of Restated Certificate of Incorporation (with
Amendments) of Veritas DGC Inc. (Incorporated by
reference to Exhibit 3.4 to Veritas DGC Inc.'s
Registration Statement No. 333-85569, dated August 19,
1999).
4.1 -- Specimen Veritas DGC Inc. Common Stock certificate.
(Incorporated by reference to Exhibit 4-C to Veritas DGC
Inc.'s Annual Report on Form 10-K for the year ended July
31, 1996).
4.2 -- Rights Agreement between Veritas DGC Inc. and ChaseMellon
Shareholder Services, L.L.C. dated as of May 15, 1997.
(Incorporated by reference to Exhibit 4.1 of Veritas DGC
Inc.'s Current Report on Form 8-K filed May 27, 1997).
4.3* -- Form of Indenture between Veritas DGC Inc. and
, as trustee (Senior Indenture).
4.4* -- Form of Indenture between Veritas DGC Inc. and
, as trustee (Subordinated Indenture).
5.1* -- Opinion of Porter & Hedges, L.L.P., with respect to the
legality of the securities filed herewith.
12* -- Computation of ratio of earnings to fixed charges.
23.1* -- Consent of PricewaterhouseCoopers LLP.
23.2* -- Consent of PricewaterhouseCoopers LLP, Chartered
Accountants.
23.3* -- Consent of Deloitte & Touche LLP.
23.4* -- Consent of Porter & Hedges, L.L.P. (included in Exhibit
5.1 Opinion).
24.1* -- Power of Attorney (included on signature page).
25.1** -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of , as trustee
(Senior Debt).
25.2** -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of , as trustee
(Subordinated Debt).
</TABLE>
- ---------------
+ Pursuant to Instruction (1) to Description of Exhibits in Item 601 of
Regulation S-K, to be filed as an Exhibit to a report on Form 8-K.
* Filed herewith.
** To be filed per Section 305(b)(2) of the Trust Indenture Act; see Undertaking
(E) in Item 17.
II-2
<PAGE> 19
ITEM 17. UNDERTAKINGS
A. Undertaking to Update
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to:
(i) include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in the
Registration Statement; and
(iii) include any material information with respect to the plan for
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraph (A)(1)(i) and (A)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. Undertaking With Respect to Documents Incorporated by Reference
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Undertaking With Respect to Indemnification
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 20
D. Undertaking with Respect to Pricing Information
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
E. Undertaking With Respect to Trustees
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-4
<PAGE> 21
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David B. Robson, Stephen J. Ludlow, Timothy L.
Wells, Anthony Tripodo, Rene VandenBrand and Larry L. Worden, and each of them,
either of whom may act without joinder of the other, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all pre- and post-effective amendments and
supplements to this Registration Statement, and to file the same, or cause to be
filed the same, with all exhibits thereto and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, or the substitute or substitutes
of either of them, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas on August 31, 1999.
VERITAS DGC INC.
By: /s/ DAVID B. ROBSON
------------------------------------
David B. Robson
Chairman of the Board,
Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the 31 day of August, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ DAVID B. ROBSON Chairman of the Board, Chief Executive Officer
- ----------------------------------------------------- and Director
David B. Robson
/s/ STEPHEN J. LUDLOW Vice Chairman of the Board and Director
- -----------------------------------------------------
Stephen J. Ludlow
/s/ TIMOTHY L. WELLS President and Chief Operating Officer
- -----------------------------------------------------
Timothy L. Wells
/s/ ANTHONY TRIPODO Executive Vice President, Chief Financial
- ----------------------------------------------------- Officer and Treasurer (principal financial
Anthony Tripodo and accounting officer)
/s/ CLAYTON P. CORMIER Director
- -----------------------------------------------------
Clayton P. Cormier
</TABLE>
II-5
<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RALPH M. EESON Director
- -----------------------------------------------------
Ralph M. Eeson
Director
- -----------------------------------------------------
Lawrence C. Fichtner
/s/ JAMES R. GIBBS Director
- -----------------------------------------------------
James R. Gibbs
/s/ STEVEN J. GILBERT Director
- -----------------------------------------------------
Steven J. Gilbert
/s/ BRIAN F. MACNEILL Director
- -----------------------------------------------------
Brian F. MacNeill
/s/ JAN RASK Director
- -----------------------------------------------------
Jan Rask
</TABLE>
II-6
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
1.1+ -- Form of Underwriting Agreement or comparable distribution
agreement, if any.
3.1 -- Restated Certificate of Incorporation (with Amendments)
of Digicon Inc. dated August 30, 1996 (Incorporated by
reference to Exhibit 2.1 of Digicon Inc.'s Current Report
on Form 8-K filed September 16, 1996).
3.2 -- Certificate of Ownership and Merger of New Digicon Inc.
and Digicon Inc. (Incorporated by reference to Exhibit
3-B to Digicon's Registration Statement No. 33-43873,
dated November 12, 1991).
3.3 -- Bylaws of New Digicon Inc. dated June 24, 1991.
(Incorporated by referenced to Exhibit 3-C to Digicon's
Registration Statement No. 33-43873, dated November 12,
1991).
3.4 -- Form of Restated Certificate of Incorporation (with
Amendments) of Veritas DGC Inc. (Incorporated by
reference to Exhibit 3.4 to Veritas DGC Inc.'s
Registration Statement No. 333-85569, dated August 19,
1999).
4.1 -- Specimen Veritas DGC Inc. Common Stock certificate.
(Incorporated by reference to Exhibit 4-C to Veritas DGC
Inc.'s Annual Report on Form 10-K for the year ended July
31, 1996).
4.2 -- Rights Agreement between Veritas DGC Inc. and ChaseMellon
Shareholder Services, L.L.C. dated as of May 15, 1997.
(Incorporated by reference to Exhibit 4.1 of Veritas DGC
Inc.'s Current Report on Form 8-K filed May 27, 1997).
4.3* -- Form of Indenture between Veritas DGC Inc. and
, as trustee (Senior Indenture).
4.4* -- Form of Indenture between Veritas DGC Inc. and
, as trustee (Subordinated Indenture).
5.1* -- Opinion of Porter & Hedges, L.L.P., with respect to the
legality of the securities filed herewith.
12* -- Computation of ratio of earnings to fixed charges.
23.1* -- Consent of PricewaterhouseCoopers LLP.
23.2* -- Consent of PricewaterhouseCoopers LLP, Chartered
Accountants.
23.3* -- Consent of Deloitte & Touche LLP.
23.4* -- Consent of Porter & Hedges, L.L.P. (included in Exhibit
5.1 Opinion).
24.1* -- Power of Attorney (included on signature page).
25.1** -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of , as trustee
(Senior Debt).
25.2** -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of , as trustee
(Subordinated Debt).
</TABLE>
- ---------------
+ Pursuant to Instruction (1) to Description of Exhibits in Item 601 of
Regulation S-K, to be filed as an Exhibit to a report on Form 8-K.
* Filed herewith.
** To be filed per Section 305(b)(2) of the Trust Indenture Act; see Undertaking
(E) in Item 17.
<PAGE> 1
EXHIBIT 4.3
===============================================================================
VERITAS DGC INC.
AND
-------------------------------------
TRUSTEE
==============================
INDENTURE
DATED AS OF
_______________________, 1999
DEBT SECURITIES
(SENIOR DEBT)
===============================================================================
Veritas DGC Inc.
<PAGE> 2
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________________, 1999
----------------------------------------
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- ----------- -------------
<S> <C> <C>
Section 310 (a)(1)............................................................................... 609
(a)(2)............................................................................... 609
(a)(3)............................................................................... Not Applicable
(a)(4)............................................................................... Not Applicable
(b).................................................................................. 608, 610
Section 311 (a).................................................................................. 613
(b).................................................................................. 613
(c).................................................................................. Not Applicable
Section 312 (a).................................................................................. 701, 702(a)
(b).................................................................................. 702(b)
(c).................................................................................. 702(c)
Section 313 (a).................................................................................. 703(a)
(b).................................................................................. 703(b)
(c).................................................................................. 703(c)
(d).................................................................................. 703(d)
Section 314 (a).................................................................................. 704, 1005
(b).................................................................................. Not Applicable
(c)(1)............................................................................... 103
(c)(2)............................................................................... 103
(c)(3)............................................................................... Not Applicable
(d).................................................................................. Not Applicable
(e).................................................................................. 103
Section 315 (a).................................................................................. 601(a)
(b).................................................................................. 602
(c).................................................................................. 601(b)
(d).................................................................................. 601(c)
(d)(1)............................................................................... 601(a)(1)
(d)(2)............................................................................... 601(c)(2)
(d)(3)............................................................................... 601(c)(3)
(e).................................................................................. 513
Section 316 (a)(1)(A)............................................................................ 502, 511
(a)(1)(B)............................................................................ 512
(a)(2)............................................................................... Not Applicable
(a)(last sentence)................................................................... 101
(b).................................................................................. 508
Section 317 (a)(1)............................................................................... 503
(a)(2)............................................................................... 504
(b).................................................................................. 1003
Section 318 (a).................................................................................. 108
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.........................................................................................1
Act .....................................................................................................2
Additional Amounts.......................................................................................2
Affiliate................................................................................................2
Agent Members............................................................................................2
Authenticating Agent.....................................................................................2
Authorized Newspaper.....................................................................................2
Board of Directors.......................................................................................2
Board Resolution.........................................................................................2
Business Day.............................................................................................2
Commission...............................................................................................3
Company ................................................................................................3
"Company Request" and "Company Order"....................................................................3
Conversion Event.........................................................................................3
Corporate Trust Office...................................................................................3
Defaulted Interest.......................................................................................3
Depositary...............................................................................................3
Dollar ................................................................................................3
Event of Default.........................................................................................3
Exchange Rate............................................................................................3
Holder ................................................................................................3
Indenture................................................................................................3
interest ................................................................................................4
Interest Payment Date....................................................................................4
Judgment Currency........................................................................................4
Maturity ................................................................................................4
Officers' Certificate....................................................................................4
Opinion of Counsel.......................................................................................4
Original Issue Discount Security.........................................................................4
Outstanding..............................................................................................4
Paying Agent.............................................................................................5
Person ................................................................................................5
Place of Payment.........................................................................................5
Predecessor Security.....................................................................................5
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Redemption Date..........................................................................................5
Redemption Price.........................................................................................5
Regular Record Date......................................................................................6
Required Currency........................................................................................6
Responsible Officer......................................................................................6
Securities...............................................................................................6
Security Custodian.......................................................................................6
Security Register........................................................................................6
Special Record Date......................................................................................6
Stated Maturity..........................................................................................6
Subsidiary...............................................................................................6
Trustee ................................................................................................6
Trust Indenture Act......................................................................................7
United States............................................................................................7
United States Alien......................................................................................7
U.S. Government Obligations..............................................................................7
Vice President...........................................................................................7
Wholly Owned Subsidiary..................................................................................7
Yield to Maturity........................................................................................7
SECTION 102. Incorporation by Reference of Trust Indenture Act...................................................7
SECTION 103. Compliance Certificates and Opinions................................................................8
SECTION 104. Form of Documents Delivered to Trustee..............................................................8
SECTION 105. Acts of Holders; Record Dates.......................................................................9
SECTION 106. Notices, Etc., to Trustee and Company..............................................................10
SECTION 107. Notice to Holders; Waiver..........................................................................10
SECTION 108. Conflict With Trust Indenture Act..................................................................11
SECTION 109. Effect of Headings and Table of Contents...........................................................11
SECTION 110. Successors and Assigns............................................................................11
SECTION 111. Separability Clause................................................................................11
SECTION 112. Benefits of Indenture..............................................................................11
SECTION 113. Governing Law......................................................................................11
SECTION 114. Legal Holidays.....................................................................................11
SECTION 115. Corporate Obligation...............................................................................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally....................................................................................12
SECTION 202. Form of Trustee's Certificate of Authentication....................................................12
SECTION 203. Securities in Global Form..........................................................................13
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
ARTICLE THREE
<S> <C>
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series...............................................................16
SECTION 302. Denominations......................................................................................18
SECTION 303. Execution, Authentication, Delivery and Dating.....................................................19
SECTION 304. Temporary Securities...............................................................................20
SECTION 305. Registration, Registration of Transfer and Exchange................................................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...................................................22
SECTION 307. Payment of Interest; Interest Rights Preserved.....................................................22
SECTION 308. Persons Deemed Owners..............................................................................24
SECTION 309. Cancellation.......................................................................................24
SECTION 310. Computation of Interest............................................................................24
SECTION 311. CUSIP Numbers......................................................................................24
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................................................24
SECTION 402. Application of Trust Money.........................................................................26
SECTION 403. Discharge of Liability on Securities of Any Series.................................................26
SECTION 404. Reinstatement......................................................................................27
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..................................................................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................................29
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee....................................31
SECTION 504. Trustee May File Proofs of Claim...................................................................31
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.............................32
SECTION 506. Application of Money Collected.....................................................................32
SECTION 507. Limitation on Suits................................................................................33
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and Interest...........................34
SECTION 509. Restoration of Rights and Remedies................................................................34
SECTION 510. Rights and Remedies Cumulative.....................................................................34
SECTION 511. Delay or Omission Not Waiver.......................................................................34
SECTION 512. Control by Holders.................................................................................35
SECTION 513. Waiver of Past Defaults............................................................................35
SECTION 514. Undertaking for Costs..............................................................................35
SECTION 515. Waiver of Stay or Extension Laws..................................................................36
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
ARTICLE SIX
<S> <C>
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................................................36
SECTION 602. Notice of Defaults.................................................................................37
SECTION 603. Certain Rights of Trustee..........................................................................37
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............................................38
SECTION 605. May Hold Securities................................................................................39
SECTION 606. Money Held in Trust................................................................................39
SECTION 607. Compensation and Reimbursement.....................................................................39
SECTION 608. Disqualification; Conflicting Interests............................................................40
SECTION 609. Corporate Trustee Required; Eligibility............................................................40
SECTION 610. Resignation and Removal; Appointment of Successor..................................................40
SECTION 611. Acceptance of Appointment by Successor.............................................................42
SECTION 612. Merger, Conversion, Consolidation or Succession to Business........................................43
SECTION 613. Preferential Collection of Claims Against Company..................................................43
SECTION 614. Appointment of Authenticating Agent................................................................43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..........................................45
SECTION 702. Preservation of Information; Communications to Holders.............................................46
SECTION 703. Reports by Trustee.................................................................................46
SECTION 704. Reports by Company.................................................................................47
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...............................................47
SECTION 802. Successor Person Substituted.......................................................................48
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................................................48
SECTION 902. Supplemental Indentures With Consent of Holders....................................................49
SECTION 903. Execution of Supplemental Indentures...............................................................50
SECTION 904. Effect of Supplemental Indentures..................................................................50
SECTION 905. Conformity With Trust Indenture Act................................................................50
SECTION 906. Reference in Securities to Supplemental Indentures.................................................51
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
ARTICLE TEN
COVENANTS
<S> <C>
SECTION 1001. Payment of Principal, Premium and Interest........................................................51
SECTION 1002. Maintenance of Office or Agency...................................................................51
SECTION 1003. Money for Securities Payments to be Held in Trust.................................................51
SECTION 1004. Existence.........................................................................................53
SECTION 1005. Statement by Officers as to Default...............................................................53
SECTION 1006. Waiver of Certain Covenants.......................................................................53
SECTION 1007. Additional Amounts................................................................................53
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..........................................................................54
SECTION 1102. Election to Redeem; Notice to Trustee.............................................................54
SECTION 1103. Selection by Trustee of Securities to be Redeemed.................................................55
SECTION 1104. Notice of Redemption..............................................................................55
SECTION 1105. Deposit of Redemption Price.......................................................................56
SECTION 1106. Securities Payable on Redemption Date.............................................................56
SECTION 1107. Securities Redeemed in Part.......................................................................56
SECTION 1108. Purchase of Securities............................................................................57
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..........................................................................57
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.............................................57
SECTION 1203. Redemption of Securities for Sinking Fund.........................................................57
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.........................................................58
SECTION 1302. Call, Notice and Place of Meetings................................................................58
SECTION 1303. Persons Entitled to Vote at Meetings..............................................................59
SECTION 1304. Quorum; Action....................................................................................59
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings...............................60
SECTION 1306. Counting Votes and Recording Action of Meetings...................................................60
</TABLE>
v
<PAGE> 8
INDENTURE, dated as of _______________, 1999 between VERITAS
DGC INC., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at 3701
Kirby Drive, Suite 112, Houston, Texas 77098, and ___________________, a
[national banking association], as Trustee (herein called the "Trustee"),
____________________ the office of the Trustee at which at the date hereof its
corporate trust business is principally administered being
______________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
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 and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall 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
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 accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
<PAGE> 9
(3) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined
in Section 102.
"Act," when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are
required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be
paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such
Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include
the Company, authorized by the Trustee to act on behalf of the Trustee pursuant
to Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
2
<PAGE> 10
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the
first paragraph of this 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" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the
Trustee in ______________ at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
that indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
designated as Depositary by the Company pursuant to Section 301 with respect to
the Securities of such series until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any series shall mean the Depositary
with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means the
Person in whose name the Security is registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301 and the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument.
3
<PAGE> 11
"interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller
or Assistant Secretary, of the Company, and delivered to the Trustee, which
certificate shall comply with Section 103 hereof.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with Section 103 hereof.
"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 of a
series, means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
4
<PAGE> 12
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (b) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person, which may include the
Company, authorized by the Company to pay the principal of (and premium, if
any) and interest on or Additional Amounts with respect to any one or more
series of Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof, or any other entity of any kind.
"Place of Payment," when used with respect to the Securities
of any series, means the place or places where the principal of (and premium,
if any) and interest on and any Additional Amounts with respect to the
Securities of that series are payable as specified in accordance with Section
301 subject to the provisions of Section 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
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to the
terms of the Security and 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 the
terms of the Security and this Indenture.
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"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 301, or, if not so specified, the
last day of the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of the calendar month or the
fifteenth day of the calendar month preceding such Interest Payment Date if
such Interest Payment Date is the first day of a calendar month, whether or not
such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"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
president, any vice president, the secretary, any assistant secretary, any
trust officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, acting
in its capacity as custodian with respect to the Securities of such series, or
any successor entity thereto.
"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 Securities of 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 as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"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,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including
the states and the District of Columbia) and its "possessions," which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"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."
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company or by one or more other Wholly
Owned Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity," when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the
United States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
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All terms used in this Indenture that are defined by the
Trust Indenture Act, defined by Trust Indenture Act reference to another
statute or defined by Commission rule under the Trust Indenture Act and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture,
upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any
(including any covenants the compliance with which constitutes a condition
precedent) provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include
(1) a statement that each Person 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 Person,
such Person has made such examination or investigation as is necessary
to enable such Person 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
Person, such condition or covenant has been complied with.
SECTION 104. 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
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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 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or record
thereof or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or the holding of any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Securities entitled to vote or consent
to any action by vote or consent authorized or permitted under this Indenture.
If a record date is fixed, those Persons who were Holders of Outstanding
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled with respect to such Securities to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such Persons continue to be Holders after such record date.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice thereof to be given to the Trustee in
writing in the manner provided in Section 106 and to the relevant Holders as
set forth in Section 107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) 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. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security; provided, however, that such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to the Trustee by
the Company, Attention: Corporate Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service,
or by reason of any other cause it shall be impracticable to give such notice
to Holders of Securities by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. In any case in which notice to Holders of Securities
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Security, shall affect the
sufficiency of such notice with respect to other Holders of Securities.
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
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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 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Authenticating Agent, Paying Agent and Security
Registrar, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent the
application of the laws of another jurisdiction would be required thereby.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other
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provision of this Indenture or of the Securities) payment of principal and
interest (and premium and Additional Amounts, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue with respect to such payment for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity, as
the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor of
the Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this
Indenture or any certificate or other writing delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security).
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
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"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[_____________________________________],
as Trustee
By
--------------------------------------
Authorized Signatory."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced 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 in such
Security or in a 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 in such Security or in the applicable Company
Order. With respect to the Securities of any series that are represented by a
Security in global form, the Company authorizes the execution and delivery by
the Trustee of a letter of representation or other similar agreement or
instrument in the form customarily provided for by the Depositary appointed
with respect to such global Security. Any Security in global form may be
deposited with the Depositary or its nominee, or may remain in the custody of
the Security Custodian therefor pursuant to a FAST Balance Certificate
Agreement or similar agreement between the Trustee and the Depositary. If a
Company Order pursuant to Section 303 or 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 103 and need not be accompanied by an Opinion of
Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any
Security issued in global form held on their behalf by the Depositary, or the
Security Custodian as its custodian, or under such global Security, and the
Depositary may be treated by the Company, the Security Custodian and any agent
of the Company or the Trustee as the absolute owner of such global Security for
all purposes whatsoever. Notwithstanding the foregoing, (i) the registered
holder of a Security of any series issued in global form may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action that a Holder of such
series is entitled to take under this Indenture or the Securities of such
series and (ii) nothing herein shall prevent the Company, the Security
Custodian or any agent of the Company or the Security Custodian, from giving
effect to any written certification, proxy or other authorization furnished by
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the Depositary or shall impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a beneficial owner of any Security.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are 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,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities of that series in an aggregate principal
amount equal to the principal amount of such permanent global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered from
time to time in accordance with instructions given to the Trustee and the
Depositary (which instructions shall be in writing but need not comply with
Section 103 or be accompanied by an Opinion of Counsel) by the 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 in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, a like aggregate principal
amount of other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Security to be exchanged; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of that series is to be redeemed and ending on the
relevant Redemption Date. Promptly following any such exchange in part, such
permanent global Security marked to evidence the partial exchange shall be
returned by the Trustee to the Depositary or such other depositary referred to
above in accordance with the instructions of the Company referred to above. If
a definitive 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 Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, transfers of a Security issued in global form
shall be limited to transfers of such global Security in whole, but not in
part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Security issued in global form may be transferred in
accordance with the rules and procedures of the Depositary. Securities of any
series shall be transferred to all beneficial owners of a global Security of
such series in exchange for their beneficial interests in that global Security
if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the global Security of such
series and a successor Depositary is not appointed by the Company within 90
days of such notice, (2) an Event of Default has occurred with respect to such
series and is continuing and the Security Registrar has received a request from
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the Depositary or the Trustee to issue Securities of such series in lieu of all
or a portion of that global Security (in which case the Company shall deliver
Securities of such series within 30 days of such request) or (3) the Company
determines not to have the Securities of such series represented by a global
Security.
In connection with any transfer of a portion of the
beneficial interest in a global Security of any series to beneficial owners
pursuant to this Section 203, the Security Registrar shall reflect on its books
and records the date and a decrease in the principal amount of the global
Security of that series in an amount equal to the principal amount of the
beneficial interest in the global Security of that series to be transferred,
and the Company shall execute, and the Trustee upon receipt of a Company Order
for the authentication and delivery of Securities of that series shall
authenticate and deliver, one or more Securities of the same series of like
tenor and amount.
In connection with the transfer of all the beneficial
interests in a global Security of any series to beneficial owners pursuant to
this Section 203, the global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the global Security, an equal
aggregate principal amount of Securities of that series of authorized
denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any
delay by the related global Security Holder or the Depositary in identifying
the beneficial owners, and each such Person may conclusively rely on, and shall
be protected in relying on, instructions from such global Security Holder or
the Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be
issued).
The provisions of the last sentence of Section 303 shall
apply to any 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 103
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 Sections 201 and 307,
unless otherwise specified as contemplated by Section 301, payment of principal
of (and premium, if any) and interest on and any Additional Amounts with
respect to any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a global Security as
shall be specified in a written statement, if any, of the Holder of such global
Security, which is produced to the Security Registrar by such Holder.
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Global Securities may be issued in either temporary or
permanent form. Permanent global Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107);
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, and, if so,
whether beneficial owners of interests in any such 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 203, and the Depositary for any global Security or
Securities of such series;
(4) the manner in which any interest payable on a temporary
global Security on any Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set forth in
Section 101, the Regular Record Date for the interest payable on any
Securities on any Interest Payment Date;
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(7) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any), any interest on
and any Additional Amounts with respect to the Securities of the
series shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed
or purchased in whole or in part pursuant to such obligation;
(10) the denomination in which any Securities of that series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) the currency or currencies (including composite
currencies) if other than Dollars, or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company or any other Person,
in which payment of the principal of (and premium, if any), and
interest on and any Additional Amounts with respect to the Securities
of the series shall be payable;
(12) if the principal of (and premium, if any) or interest on
or any Additional Amounts with Respect to the Securities of the series
are to be payable, at the election of the Company or a Holder thereof,
in a currency or currencies (including composite currencies) other
than that in which the Securities are stated to be payable, the
currency or currencies (including composite currencies) in which
payment of the principal of (and premium, if any) and interest on, and
any Additional Amounts with respect to, Securities of such series as
to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is
to be made;
(13) if the amount of payments of principal of (and premium,
if any), any interest on and any Additional Amounts with respect to
the Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to
Section 401 or 403 and the application, if any, of Section 403;
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(16) any deletions or modifications of or additions to the
definitions set forth in Section 101, the Events of Default set forth
in Section 501 or covenants of the Company set forth in Article Ten
pertaining to the Securities of the series;
(17) if the Securities of the series are to be convertible
into or exchangeable for equity securities, other debt securities
(including Securities), warrants or any other securities or property
of the Company or any other Person, at the option of the Company or
the Holder or upon the occurrence of any condition or event, the terms
and conditions for such conversion or exchange; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series,
the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions or any other
method permitted by Sections 201 and 301, in authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, except as such enforcement is subject to
the effect of (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting creditors'
rights and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not
comply with Section 103 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 and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities.
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, 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. 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.
All Outstanding 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.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section
1002 a register (the register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities of such series. The
Trustee is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Except as set forth in Section 203 or as may be provided
pursuant to Section 301, upon surrender for registration of transfer of any
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 or transferees, one or more
new Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
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 Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchange pursuant to Section 304, 906 or 1107 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 mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security 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.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security 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 has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
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 fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of any Person entitled thereto as such
address shall appear in the Security Register.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
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Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, 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.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a 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 Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) 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 neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities so delivered shall be promptly
cancelled by the Trustee. 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 all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order; provided that the Trustee shall not be required to
destroy such Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE 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 Securities of a series, and the Trustee, at the
expense of the Company, shall execute proper
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instruments acknowledging satisfaction and discharge of this Indenture with
respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of
such series not theretofore delivered to the Trustee for
cancellation, the Company has deposited or caused to be
deposited with the Trustee as trust funds, under the terms of
an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government
Obligations maturing as to principal and interest in such
amounts and at such times as will (together with the income
to accrue thereon and without consideration of any
reinvestment thereof) be sufficient to pay and discharge
(with such delivery in trust to be for the stated purpose of
paying and discharging) the entire indebtedness on all
Outstanding Securities of such series not theretofore
delivered to the Trustee for cancellation for principal (and
premium and Additional Amounts, if any) and interest to the
Stated Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Outstanding
Securities of such series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have
not been satisfied, and unless otherwise specified pursuant to Section
301 for the Securities of such series, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject
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to United States federal income tax on the same amount and in the same
manner and at the same time as would have been the case if such
deposit, satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, insofar as clauses (5) or (6) of Section 501
are concerned, at any time in 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).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America is
pledged, or beneficial interests in a trust the corpus of which consists
exclusively of money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement referred to in subclause (B) of clause (1) of
this Section shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this Section 401, the obligations of the Company to the Trustee under Section
607, the obligations to any Authenticating Agent under Section 614 and, except
for a discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 610(e), 701, 1001 and
1002 and 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 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 and Additional Amounts for the payment of which
such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to Securities of such
series, shall cease,
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terminate and be completely discharged and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging such satisfaction and
discharge, when
(1) the Company has complied with the provisions of Section
401 (other than any additional conditions specified pursuant to
Sections 301 and 401(3) and except that the Opinion of Counsel
referred to in Section 401(5) shall state that it is based on a ruling
by the Internal Revenue Service or other change since the date hereof
under applicable Federal income tax law) with respect to all
Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company
Request requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) 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 discharge of
the indebtedness on the Outstanding Securities of such series have
been complied with.
Upon the satisfaction of the conditions set forth in this
Section with respect to all the Outstanding Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations deposited with respect to Securities of any
series in accordance with Section 401 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal of (or premium, if any), or interest
on or any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means 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), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest on or any
Additional Amounts with respect to any Security of that series when
such interest or Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund
payment, when and as due by the terms of a Security of that series and
continuance of such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
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(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it, of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Notwithstanding the foregoing provisions of this Section 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company (a "Conversion Event"), the Company will be entitled to
satisfy its obligations to Holders of the Securities by making such payment in
Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is certified for customs purposes by
the Federal Reserve Bank of New York on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 501,
any payment made under such circumstances in Dollars where the required payment
is in a currency other than Dollars will not constitute an Event of Default
under this Indenture.
Promptly after the occurrence of a Conversion Event with
respect to Securities of any series, the Company shall give written notice
thereof to the Trustee; and the Trustee, promptly after receipt of such notice,
shall give notice thereof in the manner provided in Section 107 to the Holders
of such series. Promptly after the making of any payment in Dollars as a result
of a Conversion Event with respect to Securities of any series, the Company
shall give notice in the manner provided in Section 107 to the Holders of such
series, setting forth the applicable Exchange Rate and describing the
calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any 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 (i) the series affected by such default
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(in the case of an Event of Default described in clause (1), (2), (3) or (7) of
Section 501) or (ii) all series of Securities (subject to the immediately
following sentence, in the case of an Event of Default described in clause (4)
of Section 501) may declare the principal amount (or, if any such Securities
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all of the Securities of the
series affected by such default or all series, as the case may be, to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default described in clause (5) or (6) of Section 501 shall occur, the
principal amount of the Outstanding Securities of all series ipso facto shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series (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 in this Article provided, 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
(A) all overdue interest on, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may
be) which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity),
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), 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 the principal of 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 512.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on, or any Additional Amounts with respect to, any Security
of any series when such interest or Additional Amounts shall have
become due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and 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 occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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 (or lesser amount
in the case of Original Issue Discount Securities) 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
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demand on the Company for the payment of overdue principal (and premium, if
any), interest or any Additional Amounts) 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 (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts 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 monies 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 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
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 proceedings;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 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), interest or any Additional Amounts, upon presentation of
the Securities, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities 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 for principal (and premium, if any),
interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for
the purpose of obtaining judgment against the Company in any court it is
necessary to convert the sum due in respect of the principal of (or premium, if
any) or interest on or any Additional Amounts with respect to the Securities of
any series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Business Day next preceding that on which final
judgment is given. Neither the Company nor the Trustee shall be liable for any
shortfall nor shall it benefit from any windfall in payments to Holders of
Securities under this Section caused by a change in exchange rates between the
time the amount of a judgment against it is calculated as above and the time
the Trustee converts the Judgment Currency into the Required Currency to make
payments under this Section to Holders of Securities, but payment of such
judgment shall discharge all amounts owed by the Company on the claim or claims
underlying such judgment.
SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series 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
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
or affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, 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 in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities 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.
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SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of 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 an Event of
Default described in clause (1), (2), (3) or (7) of Section 501, and with
respect to all Securities the Holders of a majority in principal amount of all
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of all Securities
waive any other past default hereunder and its consequences, except in each
case a default
(1) in the payment of the principal of (or premium, if any)
or interest on, or any Additional Amounts with respect to, any
Security, 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 affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee,
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to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. 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. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that
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(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of any
series or of all series, determined as provided in Section
511, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall give notice of
such default hereunder known to the Trustee to all Holders of Securities of
such series in the manner provided in Section 107, 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) or interest on,
or any Additional Amounts with respect to, any Security of such series or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event, act or condition which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and, except for any Affiliates of the
Trustee, the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
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SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time 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
compensation and the reasonable 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 and each of its directors,
officers, employees, agents and/or representatives for, and to hold
each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on each of their 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
themselves against any claim or liability in connection with the
exercise or performance of any of the Trustee's powers or duties
hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on, or any Additional Amounts with respect to,
particular Securities.
Any expenses and compensation for any services rendered by
the Trustee after the occurrence of an Event of Default specified in clause (5)
or (6) of Section 501 shall constitute expenses and compensation for services
of administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination
of this Indenture.
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SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, with respect to the Securities
of any series, it shall, within 90 days after ascertaining that it has
such conflicting interest, either eliminate such conflicting interest
or resign with respect to the Securities of that series in the manner
and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the
Trust Indenture Act and the Trustee shall comply with Section 310(b)
of the Trust Indenture Act; provided that there shall be excluded from
the operation of Section 310(b)(1) of the Trust Indenture Act with
respect to the Securities of any series any indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
the requirements for such exclusion set forth in Section 310(b)(1) of
the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of
Section 310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by Federal or State or District of Columbia 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 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.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608(a) 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 609 and shall fail to resign after written request
therefor by the Company or by any such Holder of Securities,
or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to
Section 513, 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) and such
successor Trustee or Trustees shall comply with the applicable
requirements of Section 611. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the
Company and accepted appointment in the manner required by Section
611, 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.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all 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
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respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia having
a combined capital and surplus of not less than $50,000,000 or equivalent
amount expressed in a foreign currency and subject to supervision or
examination by Federal or State or District of Columbia authority or authority
of
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such country. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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 mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
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"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
,
--------------------------------
as Trustee
By ,
--------------------------------
as Authenticating Agent
By
--------------------------------
Authorized Signatory."
Notwithstanding any provision of this Section 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar
promptly all information necessary to enable the Security Registrar to maintain
at all times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record
Date relating to that series, on January 1 and July 1), a list, in
such form as the Trustee may reasonably require, of the names and
addresses of the Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content, such list to be dated as
of a date not more than 15 days prior to the time such list is
furnished;
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provided, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee. The Company shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders of each
series received by the Trustee in its capacity as Security Registrar,
if applicable. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished. The
Trustee shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
(b) Holders of Securities may communicate pursuant to Section
312(b) of the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section
702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section
702(b). The Company, the Trustee, the Security Registrar and any other
Person shall have the protection of Section 312(c) of the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year after the
execution of this Indenture, the Trustee shall transmit by mail to
Holders a brief report dated as of such May 15 that complies with
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by
mail as required by Sections 313(c) and 313(d) of the Trust Indenture
Act:
(1) to all Holders of Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within
the two years preceding such transmissions, filed their names
and addresses with the Trustee for that purpose; and
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(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a Security
whose name and address is preserved at the time by the
Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b)
of this Section 703 shall, at the time of its transmission to Holders,
be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall 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, as amended, and shall otherwise comply with
Section 314(a) of the Trust Indenture Act.
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 Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on and any Additional Amounts with
respect to all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event, act or condition which, after notice
or lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company 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, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 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 thereafter, except
in the case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series), to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee or otherwise secure any
series of the Securities or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
(5) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(6) 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
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pursuant to Section 401; provided, however, that any such action shall
not adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon, any
Additional Amounts with respect thereto or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
Additional Amounts (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 that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or
currency or currencies (including composite currencies) in which, any
Security or any premium or any interest thereon or Additional Amounts
with respect thereto is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
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<PAGE> 57
(3) modify any of the provisions of this Section, Section 512
or Section 1006, except to increase any such percentage or to provide
with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1006, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 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.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
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. 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest on or any Additional
Amounts with respect to any of the Securities of that series, segregate and
hold
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<PAGE> 59
in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal (and premium, if any) or interest or any Additional Amounts
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, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any), interest on or any Additional Amounts with
respect to Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any), interest on or any
Additional Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on or any Additional Amounts with respect to any
Security of any series and remaining unclaimed for three years after such
principal (and premium, if any) or interest or Additional Amounts have become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
52
<PAGE> 60
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in The Borough
of Manhattan, The City of New York and in such other Authorized Newspapers as
the Trustee shall deem appropriate, 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, unless otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. 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.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof
so long as any Security is outstanding hereunder, an Officers' Certificate
complying with Section 314(a) of the Trust Indenture Act, stating that a review
of the activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and
whether or not to the best of their knowledge, based upon such review, the
Company is in default in the performance, observance or fulfillment of any of
its covenants and other obligations under this Indenture, and if the Company
shall be in default, specifying each such default known to them and the nature
and status thereof. One of the officers signing the Officers' Certificate
delivered pursuant to this Section 1005 shall be the principal executive,
financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Section 1004, or any covenant added
for the benefit of any series of Securities as contemplated by Section 301
(unless otherwise specified pursuant to Section 301) if before or after the
time for such compliance the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such omission (acting as one
class) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1007. Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly
53
<PAGE> 61
provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or the net proceeds received from the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for in this
Section to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the FIRST Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall 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 any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities and the Company will
pay to such Paying Agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a
series as contemplated by Section 301, the election of the Company to redeem
any Securities shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities of
any series, the Company shall, a reasonable period 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. In the case
54
<PAGE> 62
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 (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
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 will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
55
<PAGE> 63
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need
not identify particular Securities to be redeemed. 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.
On or before 10:00 a.m., Houston, Texas time, on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, and any Additional Amounts with respect to,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest (and any Additional Amounts) to the Redemption Date; provided,
however, that installments of interest 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 Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and Stated Maturity, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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<PAGE> 64
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301,
the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities in the open market or by private agreement. Such
acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities. Any Securities
purchased or acquired by the Company may be delivered to the Trustee and, upon
such delivery, the indebtedness represented thereby shall be deemed to be
satisfied. Section 309 shall apply to all Securities so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any 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." Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption), and (2) may apply as
a credit Securities of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) 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
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<PAGE> 65
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may
be called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be held
at such time and at such place in Houston, Texas, or in New York, New York, or
in London, England, or in any other location, as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
107, not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 30 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 Houston, Texas, or in New York,
New York, or in London, England, for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in Subsection (a) of this
Section.
58
<PAGE> 66
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Subject to Section 1305(d),
notice of the reconvening of any adjourned meeting shall be given as provided
in Section 1302(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly that Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series shall constitute a quorum.
Except as limited by the first 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 a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
first proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent or waiver which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage that is less than a majority in aggregate principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in
aggregate principal amount of the Outstanding Securities of that series.
Except as limited by the first proviso to Section 902, 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, whether or not present or represented
at the meeting.
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SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be
proved in the manner specified in Section 105. 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 105 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 1302(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
and each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of such
series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee,
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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 instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
VERITAS DGC INC.
By
------------------------------------
Name:
Title:
,
--------------------------------------
Trustee
By
------------------------------------
Name:
Title:
61
<PAGE> 1
EXHIBIT 4.4
================================================================================
VERITAS DGC INC.
AND
TRUSTEE
---------------------------------------------
INDENTURE
DATED AS OF
, 1999
-----------------------
DEBT SECURITIES
(SUBORDINATED DEBT)
================================================================================
<PAGE> 2
Veritas DGC Inc.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________________, 1999
----------------------------------------
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- --------------- -------------
<S> <C> <C>
Section 310 (a)(1)............................................................................... 609
(a)(2)............................................................................... 609
(a)(3)............................................................................... Not
Applicable
(a)(4)............................................................................... Not
Applicable
(b).................................................................................. 608, 610
Section 311 (a).................................................................................. 613
(b).................................................................................. 613
(c).................................................................................. Not
Applicable
Section 312 (a).................................................................................. 701, 702(a)
(b).................................................................................. 702(b)
(c).................................................................................. 702(c)
Section 313 (a).................................................................................. 703(a)
(b).................................................................................. 703(b)
(c).................................................................................. 703(c)
(d).................................................................................. 703(d)
Section 314 (a).................................................................................. 704, 1005
(b).................................................................................. Not
Applicable
(c)(1)............................................................................... 103
(c)(2)............................................................................... 103
(c)(3)............................................................................... Not
Applicable
(d).................................................................................. Not
Applicable
(e).................................................................................. 103
Section 315 (a).................................................................................. 601(a)
(b).................................................................................. 602
(c).................................................................................. 601(b)
(d).................................................................................. 601(c)
(d)(1)............................................................................... 601(a)(1)
(d)(2)............................................................................... 601(c)(2)
(d)(3)............................................................................... 601(c)(3)
(e).................................................................................. 513
Section 316 (a)(1)(A)............................................................................ 502, 511
(a)(1)(B)............................................................................ 512
(a)(2)............................................................................... Not
Applicable
(a)(last sentence)................................................................... 101
(b).................................................................................. 508
Section 317 (a)(1)............................................................................... 503
(a)(2)............................................................................... 504
(b).................................................................................. 1003
Section 318 (a).................................................................................. 108
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
RECITALS OF THE COMPANY..........................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions........................................................................1
Act ...............................................................................2
Additional Amounts......................................................................2
Affiliate...............................................................................2
Agent Members...........................................................................2
Authenticating Agent....................................................................2
Authorized Newspaper....................................................................2
Board of Directors......................................................................2
Board Resolution........................................................................2
Business Day............................................................................2
Capital Stock...........................................................................3
Capitalized Lease Obligation............................................................3
Commission..............................................................................3
Company ...............................................................................3
"Company Request" and "Company Order"...................................................3
Conversion Event........................................................................3
Corporate Trust Office..................................................................3
Defaulted Interest......................................................................3
Depositary..............................................................................3
Designated Senior Indebtedness..........................................................4
Disqualified Capital Stock..............................................................4
"Dollar" or "$".........................................................................4
Event of Default........................................................................4
Exchange Rate...........................................................................4
Holder ...............................................................................4
Indebtedness............................................................................4
Indenture...............................................................................5
interest ...............................................................................5
Interest Payment Date...................................................................5
Interest Swap and Hedging Obligation....................................................5
Judgment Currency.......................................................................5
Junior security.........................................................................5
Maturity ...............................................................................5
Officers' Certificate...................................................................5
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Opinion of Counsel......................................................................5
Original Issue Discount Security........................................................6
Outstanding.............................................................................6
Paying Agent............................................................................7
Payment Default.........................................................................7
Payment Notice..........................................................................7
Person ...............................................................................7
Place of Payment........................................................................7
Predecessor Security....................................................................7
Qualified Capital Stock.................................................................7
Redemption Date.........................................................................7
Redemption Price........................................................................7
Regular Record Date.....................................................................7
Required Currency.......................................................................7
Responsible Officer.....................................................................7
Securities..............................................................................8
Security Custodian......................................................................8
Security Register.......................................................................8
Senior Indebtedness.....................................................................8
Special Record Date.....................................................................8
Stated Maturity.........................................................................8
Subsidiary..............................................................................8
Trustee ...............................................................................8
Trust Indenture Act.....................................................................9
United States...........................................................................9
United States Alien.....................................................................9
U.S. Government Obligations.............................................................9
Vice President..........................................................................9
Wholly Owned Subsidiary.................................................................9
Yield to Maturity.......................................................................9
SECTION 102. Incorporation by Reference of Trust Indenture Act..................................9
SECTION 103. Compliance Certificates and Opinions..............................................10
SECTION 104. Form of Documents Delivered to Trustee............................................10
SECTION 105. Acts of Holders; Record Dates.....................................................11
SECTION 106. Notices, Etc., to Trustee and Company.............................................12
SECTION 107. Notice to Holders; Waiver.........................................................12
SECTION 108. Conflict With Trust Indenture Act.................................................13
SECTION 109. Effect of Headings and Table of Contents..........................................13
SECTION 110. Successors and Assigns...........................................................13
SECTION 111. Separability Clause...............................................................13
SECTION 112. Benefits of Indenture.............................................................13
SECTION 113. Governing Law.....................................................................14
SECTION 114. Legal Holidays....................................................................14
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SECTION 115. Corporate Obligation..............................................................14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally...................................................................14
SECTION 202. Form of Trustee's Certificate of Authentication...................................14
SECTION 203. Securities in Global Form.........................................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..............................................18
SECTION 302. Denominations.....................................................................21
SECTION 303. Execution, Authentication, Delivery and Dating....................................21
SECTION 304. Temporary Securities..............................................................22
SECTION 305. Registration, Registration of Transfer and Exchange...............................23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..................................24
SECTION 307. Payment of Interest; Interest Rights Preserved....................................25
SECTION 308. Persons Deemed Owners.............................................................26
SECTION 309. Cancellation......................................................................26
SECTION 310. Computation of Interest...........................................................26
SECTION 311. CUSIP Numbers.....................................................................26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...........................................27
SECTION 402. Application of Trust Money........................................................29
SECTION 403. Discharge of Liability on Securities of Any Series................................29
SECTION 404. Reinstatement.....................................................................30
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.................................................................30
SECTION 502. Acceleration of Maturity; Rescission and Annulment................................32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...................33
SECTION 504. Trustee May File Proofs of Claim..................................................34
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons............35
SECTION 506. Application of Money Collected....................................................35
SECTION 507. Limitation on Suits...............................................................36
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and Interest..........36
SECTION 509. Restoration of Rights and Remedies................................................36
SECTION 510. Rights and Remedies Cumulative....................................................37
SECTION 511. Delay or Omission Not Waiver......................................................37
SECTION 512. Control by Holders................................................................37
SECTION 513. Waiver of Past Defaults...........................................................37
SECTION 514. Undertaking for Costs.............................................................38
SECTION 515. Waiver of Stay or Extension Laws..................................................38
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities...............................................38
SECTION 602. Notice of Defaults................................................................40
SECTION 603. Certain Rights of Trustee.........................................................40
SECTION 604. Not Responsible for Recitals or Issuance of Securities............................41
SECTION 605. May Hld Securities................................................................41
SECTION 606. Money Held in Trust...............................................................41
SECTION 607. Compensation and Reimbursement....................................................41
SECTION 608. Disqualification; Conflicting Interests...........................................42
SECTION 609. Corporate Trustee Required; Eligibility...........................................43
SECTION 610. Resignation and Removal; Appointment of Successor.................................43
SECTION 611. Acceptance of Appointment by Successor............................................44
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.......................45
SECTION 613. Preferential Collection of Claims Against Company.................................46
SECTION 614. Appointment of Authenticating Agent...............................................46
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.........................48
SECTION 702. Preservation of Information; Communications to Holders............................48
SECTION 703. Reports by Trustee................................................................49
SECTION 704. Reports by Company................................................................49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..............................49
SECTION 802. Successor Person Substituted......................................................50
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders................................50
SECTION 902. Supplemental Indentures With Consent of Holders...................................51
SECTION 903. Execution of Supplemental Indentures..............................................53
SECTION 904. Effect of Supplemental Indentures.................................................53
SECTION 905. Conformity With Trust Indenture Act...............................................53
SECTION 906. Reference in Securities to Supplemental Indentures................................53
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.......................................53
SECTION 1002. Maintenance of Office or Agency..................................................54
SECTION 1003. Money for Securities Payments to be Held in Trust................................54
SECTION 1004. Existence........................................................................55
SECTION 1005. Statement by Officers as to Default..............................................55
SECTION 1006. Waiver of Certain Covenants......................................................56
SECTION 1007. Additional Amounts...............................................................56
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.........................................................57
SECTION 1102. Election to Redeem; Notice to Trustee............................................57
SECTION 1103. Selection by Trustee of Securities to be Redeemed................................57
SECTION 1104. Notice of Redemption.............................................................58
SECTION 1105. Deposit of Redemption Price......................................................58
SECTION 1106. Securities Payable on Redemption Date............................................59
SECTION 1107. Securities Redeemed in Part......................................................59
SECTION 1108. Purchase of Securities...........................................................59
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.........................................................60
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............................60
SECTION 1203. Redemption of Securities for Sinking Fund........................................60
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinated to Senior Indebtedness...................................61
SECTION 1302. No Payment on Securities in Certain Circumstances................................61
SECTION 1303. Securities Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization...........................62
SECTION 1304. Subrogation to Rights of Holders of Senior Indebtedness..........................63
SECTION 1305. Obligations of the Company Unconditional.........................................64
SECTION 1306. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice..........64
SECTION 1307. Application by Trustee of Amounts Deposited with It..............................64
SECTION 1308. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness.......................................65
SECTION 1309. Trustee to Effectuate Subordination of Securities................................65
SECTION 1310. Right of Trustee to Hold Senior Indebtedness.....................................66
SECTION 1311. Article Thirteen Not to Prevent Events of Default................................66
SECTION 1312. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness...................66
SECTION 1313. Article Applicable to Paying Agent...............................................66
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called........................................66
SECTION 1402. Call, Notice and Place of Meetings...............................................67
SECTION 1403. Persons Entitled to Vote at Meetings.............................................67
SECTION 1404. Quorum; Action...................................................................67
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings..............68
SECTION 1406. Counting Votes and Recording Action of Meetings..................................69
</TABLE>
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<PAGE> 10
INDENTURE, dated as of _______________, 1999 between VERITAS
DGC INC., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at 3701
Kirby Drive, Suite 112, Houston, Texas 77098, and ___________________________, a
[national banking association], as Trustee (herein called the "Trustee"), the
office of the Trustee at which at the date hereof its corporate trust business
is principally administered being __________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall 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
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 accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
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(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are
required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be
paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such
Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking
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<PAGE> 12
institutions in that Place of Payment are authorized or obligated by law or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that Person.
"Capitalized Lease Obligation" means rental obligations under
a lease that are required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of
such obligations, as determined in accordance with generally accepted accounting
principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Controller, an Assistant Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the
Trustee in _____________ at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
that indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
designated as Depositary by the Company pursuant to Section 301 with respect to
the Securities of such series until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any series shall mean the Depositary
with respect to the Securities of that series.
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<PAGE> 13
"Designated Senior Indebtedness," unless otherwise provided
with respect to the Securities of a series as contemplated by Section 301, means
any Senior Indebtedness that (i) in the instrument evidencing the same or the
assumption or guarantee thereof (or related documents to which the Company is a
party) is expressly designated as "Designated Senior Indebtedness" for purposes
of this Indenture and (ii) satisfies such other conditions as may be provided
with respect to the Securities of such series; provided that such instruments or
documents may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness.
"Disqualified Capital Stock" means, when used with respect to
the Securities of any series, (a) except as set forth in (b), with respect to
any Person, Capital Stock of such Person that, by its terms or by the terms of
any security into which it is convertible, exercisable or exchangeable, is, or
upon the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by such
Person or any Subsidiary of such Person, in whole or in part, on or prior to the
Stated Maturity of the Securities of such series, and (b) with respect to any
Subsidiary of such Person (including with respect to any Subsidiary of the
Company), any Capital Stock other than any common stock with no preference,
privileges, or redemption or repayment provisions.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the
Person in whose name the Security is registered in the Security Register.
"Indebtedness" of any Person, unless otherwise provided with
respect to the Securities of a series as contemplated by Section 301, means,
without duplication, the following (whether currently outstanding or hereafter
incurred or created): (i) all liabilities and obligations, contingent or
otherwise, of any such Person (a) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (b) evidenced by bonds, notes, debentures or similar
instruments, (c) representing the balance deferred and unpaid of the purchase
price of any property or services, except such as would constitute trade
payables to trade creditors in the ordinary course of business that are not more
than 90 days past their original due date, (d) evidenced by bankers' acceptances
or similar instruments issued or accepted by banks, (e) for the payment of money
relating to a Capitalized Lease Obligation or (f) evidenced by a letter of
credit or a reimbursement obligation of such Person with respect to any letter
of credit; (ii) all net obligations of such Person under Interest Swap and
Hedging Obligations; (iii) all liabilities of others of the kind described in
the preceding clause (i) or (ii) that such Person has guaranteed or that is
otherwise its legal liability and all obligations to purchase, redeem or acquire
any Capital Stock; and (iv) any and all deferrals, renewals, extensions,
refinancings, refundings (whether direct or indirect) of, or amendments,
4
<PAGE> 14
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (i), (ii) or (iii), or this clause (iv), whether or not
between or among the same parties.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Interest Swap and Hedging Obligation" means any obligation of
any Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Judgment Currency" has the meaning specified in Section 506.
"Junior security" of a Person means, when used with respect to
the Securities of any series, any Qualified Capital Stock of such Person or any
Indebtedness of such Person that is subordinated in right of payment to the
Securities of such series and has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities of such series.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee, which
certificate shall comply with Section 103 hereof.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with Section 103 hereof.
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<PAGE> 15
"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 of a
series, means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
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<PAGE> 16
"Paying Agent" means any Person, which may include the
Company, authorized by the Company to pay the principal of (and premium, if any)
or interest on or Additional Amounts with respect to any one or more series of
Securities on behalf of the Company.
"Payment Default" has the meaning specified in Section
1302(a).
"Payment Notice" has the meaning specified in Section 1302(b).
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity of any kind.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest on and any Additional Amounts with respect to the Securities
of that series are payable as specified in accordance with Section 301 subject
to the provisions of Section 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 shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to the
terms of such Security and 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 the terms
of such Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301, or, if not so specified, the last day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 506.
"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
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<PAGE> 17
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any
Trust Officer or Assistant Trust Officer, the Controller or any Assistant
Controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, acting
in its capacity as custodian with respect to the Securities of such series, or
any successor entity thereto.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" of the Company, unless otherwise
provided with respect to the Securities of a series as contemplated by Section
301, means (i) all Indebtedness of the Company, whether currently outstanding or
hereafter issued, unless, by the terms of the instrument creating or evidencing
such Indebtedness, it is provided that such Indebtedness is not superior in
right of payment to the Securities or to other Indebtedness which is pari passu
with or subordinated to the Securities, and (ii) any modifications, refunding,
deferrals, renewals or extensions of any such Indebtedness or securities, notes
or other evidences of Indebtedness issued in exchange for such Indebtedness;
provided that in no event shall "Senior Indebtedness" include (a) Indebtedness
of the Company owed or owing to any Subsidiary of the Company or any officer,
director or employee of the Company or any Subsidiary of the Company, (b)
Indebtedness to trade creditors or (c) any liability for taxes owed or owing by
the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of 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 as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a
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Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including
the States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"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".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company or by one or more other Wholly
Owned Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the
United States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any
(including any covenants the compliance with which constitutes a condition
precedent, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person 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 Person, such
Person has made such examination or investigation as is necessary to
enable such Person 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
Person, such condition or covenant has been complied with.
SECTION 104. 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
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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 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record thereof or
both are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those Persons who were Holders of Outstanding Securities
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section 107.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. 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 Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) 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. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security; provided, however, that such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company, Attention: Corporate Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
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In case by reason of the suspension of regular mail service,
or by reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case in which notice to Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
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 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Authenticating Agent, Paying Agent and Security
Registrar, and the Holders and holders of any Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
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SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent the
application of the laws of another jurisdiction would be required thereby.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal and interest (and premium and Additional
Amounts, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the
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delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities (or any such temporary global Security).
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[ ],
---------------------------------------
as Trustee
By
-------------------------------------
Authorized Signatory".
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced 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 in such Security or in a 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 in such
Security or in the applicable Company Order. With respect to the Securities of
any series that are represented by a Security in global form, the Company
authorizes the execution and delivery by the Trustee of a letter of
representation or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to such global Security.
Any Security in global form may be deposited with the Depositary or its nominee,
or may remain in the custody of the Security Custodian therefor pursuant to a
FAST Balance Certificate Agreement or similar agreement between the Trustee and
the Depositary. If a Company Order pursuant to Section 303 or 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 103 and need not be accompanied by an
Opinion of Counsel.
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Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Security
issued in global form held on their behalf by the Depositary, or the Security
Custodian as its custodian, or under such global Security, and the Depositary
may be treated by the Company, the Security Custodian and any agent of the
Company or the Trustee as the absolute owner of such global Security for all
purposes whatsoever. Notwithstanding the foregoing, (i) the registered holder of
a Security of any series issued in global form may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder of such series
is entitled to take under this Indenture or the Securities of such series and
(ii) nothing herein shall prevent the Company, the Security Custodian or any
agent of the Company or the Security Custodian, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a beneficial
owner of any Security.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are 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, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with Section 103 or be accompanied by an
Opinion of Counsel) by the 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 in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of other definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series is to be redeemed and ending
on the relevant Redemption Date. Promptly following any such exchange in part,
such permanent global Security marked to evidence the partial exchange shall be
returned by the Trustee to the Depositary or such other depositary referred to
above in accordance with the instructions of the Company referred to above. If a
definitive 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 Security,
but will be payable on such Interest Payment Date or proposed for payment, as
the case
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may be, only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, transfers of a Security issued in global form shall
be limited to transfers of such global Security in whole, but not in part, to
the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Security issued in global form may be transferred in
accordance with the rules and procedures of the Depositary. Securities of any
series shall be transferred to all beneficial owners of a global Security of
such series in exchange for their beneficial interests in that global Security
if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the global Security of such
series and a successor Depositary is not appointed by the Company within 90 days
of such notice, (2) an Event of Default has occurred with respect to such series
and is continuing and the Security Registrar has received a request from the
Depositary or the Trustee to issue Securities of such series in lieu of all or a
portion of that global Security (in which case the Company shall deliver
Securities of such series within 30 days of such request) or (3) the Company
determines not to have the Securities of such series represented by a global
Security.
In connection with any transfer of a portion of the beneficial
interest in a global Security of any series to beneficial owners pursuant to
this Section 203, the Security Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the global Security of that
series in an amount equal to the principal amount of the beneficial interest in
the global Security of that series to be transferred, and the Company shall
execute, and the Trustee upon receipt of a Company Order for the authentication
and delivery of Securities of that series shall authenticate and deliver, one or
more Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a global Security of any series to beneficial owners pursuant to
this Section 203, the global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the global Security, an equal
aggregate principal amount of Securities of that series of authorized
denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any
delay by the related global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from such global Security Holder or the
Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of Section 303 shall apply
to any 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 103 and
need not be accompanied by an Opinion of Counsel) with regard to
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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 Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest on and any Additional Amounts with respect to any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a global Security as
shall be specified in a written statement, if any, of the Holder of such global
Security, which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or
permanent form. Permanent global Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, and, if so, whether
beneficial owners of interests in any such 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 203, and the Depositary for any global Security or Securities
of such series;
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(4) the manner in which any interest payable on a temporary
global Security on any Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof,
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and, if other than as set forth in Section
101, the Regular Record Date for the interest payable on any Securities
on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any), any interest on
and any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed or
purchased in whole or in part pursuant to such obligation;
(10) the denomination in which any Securities of that series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) the currency or currencies (including composite
currencies) if other than Dollars, or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company or any other Person, in
which payment of the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the
series shall be payable;
(12) if the principal of (and premium, if any) or interest on
or any Additional Amounts with respect to the Securities of the series
are to be payable, at the election of the Company or a Holder thereof,
in a currency or currencies (including composite currencies) other than
that in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal of (and premium, if any) and interest on, and any Additional
Amounts with respect to, Securities
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of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) if the amount of payments of principal of (and premium,
if any), any interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to Section
401 or 403 and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the
definitions set forth in Section 101, the Events of Default set forth
in Section 501 or covenants of the Company set forth in Article Ten
pertaining to the Securities of the series;
(17) if the Securities of the series are to be convertible
into or exchangeable for equity securities, other debt securities
(including Securities), warrants or any other securities or property of
the Company or any other Person, at the option of the Company or the
Holder or upon the occurrence of any condition or event, the terms and
conditions for such conversion or exchange; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
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SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or any other method
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
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(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect
of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization or
other laws relating to or affecting creditors' rights and (ii) general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security, a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 103 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 and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as evidenced by their execution of such Securities.
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, the Company shall execute
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and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. 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.
All Outstanding 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.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section 1002
a register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities of such series. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Except as set forth in Section 203 or as may be provided
pursuant to Section 301, upon surrender for registration of transfer of any
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 or transferees, one or more
new Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
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 Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or
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exchange of Securities, other than exchange pursuant to Section 304, 906 or 1107
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 mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security 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.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
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 has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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 fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of any Person entitled thereto as such
address shall appear in the Security Register.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as
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may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a 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 Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) 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
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered shall be promptly cancelled by the
Trustee. 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 all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; provided that the Trustee shall not be required to destroy such
Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed
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on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
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 Securities of a series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to Securities of such
series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of
such series not theretofore delivered to the Trustee for
cancellation, the Company has deposited or caused to be
deposited with the Trustee as trust funds, under the terms of
an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government
Obligations maturing as to principal and interest in such
amounts and at such times as will (together with the income to
accrue thereon and without consideration of any reinvestment
thereof) be sufficient to pay and discharge (with such
delivery in trust to be for the stated purpose of paying and
discharging) the entire indebtedness on all Outstanding
Securities of such series not theretofore delivered to the
Trustee for cancellation for principal (and premium and
Additional Amounts, if any) and interest to the Stated
Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
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(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Outstanding Securities
of such series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not
been satisfied, and unless otherwise specified pursuant to Section 301
for the Securities of such series, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at the same
time as would have been the case if such deposit, satisfaction and
discharge had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, insofar as clauses (5) or (6) of Section 501
are concerned, at any time in 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).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America is pledged,
or beneficial interests in a trust the corpus of which consists exclusively of
money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement referred to in subclause (B) of clause (1) of
this Section shall provide therefor and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this Section 401, the obligations of the Company to the Trustee under Section
607, the obligations to any Authenticating Agent under Section 614 and, except
for a discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 610(e), 701, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
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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,
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 and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to Securities of such
series, shall cease, terminate and be completely discharged and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of Section
401 (other than any additional conditions specified pursuant to
Sections 301 and 401(3) and except that the Opinion of Counsel referred
to in Section 401(5) shall state that it is based on a ruling by the
Internal Revenue Service or other change since the date hereof under
applicable Federal income tax law) with respect to all Outstanding
Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) 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 discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this
Section with respect to all the Outstanding Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
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SECTION 404. Reinstatement
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; provided, however, that if the Company has made any
payment of principal of (or premium, if any), or interest on or any Additional
Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
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 occasioned by the
provisions of Article Thirteen or 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),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security for
such series:
(1) default in the payment of any interest on or any
Additional Amounts with respect to any Security of that series when
such interest or Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund
payment, when and as due by the terms of a Security of that series and
continuance of such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than that series), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
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Company and the Trustee by the Holders of at least 25% in principal
amount of all Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it, of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Notwithstanding the foregoing provisions of this Section 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company (a "Conversion Event"), the Company will be entitled to
satisfy its obligations to Holders of the Securities by making such payment in
Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is certified for customs purposes by
the Federal Reserve Bank of New York on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this Section 501, any
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payment made under such circumstances in Dollars where the required payment is
in a currency other than Dollars will not constitute an Event of Default under
this Indenture.
Promptly after the occurrence of a Conversion Event with
respect to Securities of any series, the Company shall give written notice
thereof to the Trustee; and the Trustee, promptly after receipt of such notice,
shall give notice thereof in the manner provided in Section 107 to the Holders
of such series. Promptly after the making of any payment in Dollars as a result
of a Conversion Event with respect to Securities of any series, the Company
shall give notice in the manner provided in Section 107 to the Holders of such
series, setting forth the applicable Exchange Rate and describing the
calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any 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 (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of an Event of Default described in clause (4) of Section 501) may
declare the principal amount (or, if any such Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of Section 501 shall occur, the principal amount
of the Outstanding Securities of all series ipso facto shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series (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 in this Article provided, 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
(A) all overdue interest on, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be),
(B) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may
be) which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity),
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity), 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 the principal of 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 512.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on, or any Additional Amounts with respect to, any Security of
any series when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and 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.
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If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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 (or lesser amount
in the case of Original Issue Discount Securities) 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 (and premium, if any), interest or any
Additional Amounts) 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 (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts 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 monies 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 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
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 proceedings; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, 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), interest or any Additional
Amounts, upon presentation of the Securities, 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 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities 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 for principal (and premium, if any),
interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Business Day next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
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SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing Event
of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 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 of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
or affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former
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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 in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities 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 Securities of any series, the Holders of 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 an Event of Default
described in clause (1), (2), (3) or (7) of Section 501, and with respect to all
Securities the Holders of a majority in principal amount of all Outstanding
Securities shall have the right to direct the time, method and place of
conducting any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, not relating to or arising under such an Event of
Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of all Securities
waive any other past default hereunder and its consequences, except in each case
a default
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(1) in the payment of the principal of (or premium, if any)
or interest on, or any Additional Amounts with respect to, any
Security, 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 affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
on or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. 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. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
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(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
or of all series, determined as provided in Section 511,
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
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SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall give notice of
such default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 107, 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) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event, act or condition which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and, except for any Affiliates of the
Trustee, the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time 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
compensation and
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the reasonable 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 and each of its directors,
officers, employees, agents and/or representatives for, and to hold
each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on each of their 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
themselves against any claim or liability in connection with the
exercise or performance of any of the Trustee's powers or duties
hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on, or any Additional Amounts with respect to, particular
Securities.
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, with respect to the Securities of
any series, it shall, within 90 days after ascertaining that it has
such conflicting interest, either eliminate such conflicting interest
or resign with respect to the Securities of that series in the manner
and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the
Trust Indenture Act and the Trustee shall comply with Section 310(b) of
the Trust Indenture Act; provided that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act with respect
to the Securities of any series any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for
such exclusion set forth in Section 310(b)(1) of the Trust Indenture
Act are met. For purposes of the preceding sentence, the optional
provision permitted by the second sentence of Section 310(b)(9) of the
Trust Indenture Act shall be applicable.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State (or District of Columbia) 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 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.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608(a) 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 609 and shall fail to resign after written request
therefor by the Company or by any such Holder of Securities,
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
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affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a
Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 513, 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) and such successor
Trustee or Trustees shall comply with the applicable requirements of
Section 611. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company and accepted
appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all 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
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deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia having a
combined capital and surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or examination by
Federal or State (or District of Columbia) authority or authority of such
country. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
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 mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
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Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities 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.
--------------------------------------
as Trustee
By
------------------------------------
as Authenticating Agent
By
------------------------------------
Authorized Signatory".
Notwithstanding any provision of this Section 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar promptly
all information necessary to enable the Security Registrar to maintain at all
times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain from
the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record
Date relating to that series, on January 1 and July 1), a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date
not more than 15 days prior to the time such list is furnished;
provided, that so long as the Trustee is the Security Registrar, the
Company shall not be required to furnish or cause to be furnished such
a list to the Trustee. The Company shall otherwise comply with Section
310(a) of the Trust Indenture Act.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each
series contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders of each
series received by the Trustee in its capacity as Security Registrar,
if applicable. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished. The
Trustee shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
(b) Holders of Securities may communicate pursuant to Section
312(b) the Trust Indenture Act with other Holders with respect to their
rights under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section
702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section
702(b). The Company, the Trustee, the Security Registrar and any other
Person shall have the protection of Section 312(c) of the Trust
Indenture Act.
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SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year after the
execution of this Indenture, the Trustee shall transmit by mail to
Holders a brief report dated as of such May 15 that complies with
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by
mail as required by Sections 313(c) and 313(d) of the Trust Indenture
Act:
(1) to all Holders of Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the
two years preceding such transmissions, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a Security
whose name and address is preserved at the time by the
Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of
this Section 703 shall, at the time of its transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Securities
are listed, with the Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall 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, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
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
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
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(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest on and any Additional Amounts with respect to all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event, act or condition which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company 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, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 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 thereafter, except in
the case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series
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of Securities, stating that such covenants are expressly being included
solely for the benefit of such series), to convey, transfer, assign,
mortgage or pledge any property to or with the Trustee or otherwise
secure any series of the Securities or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
(5) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(6) 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
Section 401; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
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(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any
Additional Amounts with respect thereto or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts (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 that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or
currency or currencies (including composite currencies) in which, any
Security or any premium or any interest thereon or Additional Amounts
with respect thereto is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date) or modify the provisions of this Indenture with respect to the
subordination of any Security in a manner adverse to the Holder
thereof, or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 512
or Section 1006, except to increase any such percentage or to provide
with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
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. 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on or any Additional Amounts
with respect to any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest or any Additional Amounts 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, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any), interest on or any Additional Amounts with
respect to Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any), interest on or any
Additional Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on or any Additional Amounts with respect to any
Security of any series and remaining unclaimed for three years after such
principal (and premium, if any) or interest or Additional Amounts have become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in The Borough of Manhattan, The
City of New York and in such other Authorized Newspapers as the Trustee shall
deem appropriate, 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,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. 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.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof so long
as any Security is outstanding hereunder, an Officers' Certificate, complying
with Section 314(a) of the Trust Indenture Act, stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their knowledge, based upon such review, the Company is in
default in the performance, observance or
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fulfillment of any of its covenants and other obligations under this Indenture,
and if the Company shall be in default, specifying each such default known to
them and the nature and status thereof. One of the officers signing the
Officers' Certificate delivered pursuant to this Section 1005 shall be the
principal executive, financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 1004, or any covenant added for
the benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1007. Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or the net proceeds received from the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for in this Section to the extent that,
in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall 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 any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if
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any, required to be withheld on such payments to such Holders of Securities and
the Company will pay to such Paying Agent the Additional Amounts required by
this Section. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a
series as contemplated by Section 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, a reasonable period 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. 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 (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
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 will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not identify
particular Securities to be redeemed. 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.
On or before 10:00 a.m., Houston, Texas time, on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, and any Additional Amounts with respect to,
all the Securities which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest (and any Additional Amounts) to the Redemption Date; provided,
however, that installments of interest 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 Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and
Stated Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Such acquisition
shall not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any 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". Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 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.
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ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinated to Senior Indebtedness.
The Company and each Holder of a Security, by his acceptance
thereof, agree that (a) the payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to each and all the
Securities and (b) any other payment in respect of the Securities, including on
account of the acquisition or redemption of Securities by the Company, is
subordinated, to the extent and in the manner provided in this Article Thirteen,
to the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter created, incurred,
assumed or guaranteed, and that these subordination provisions are for the
benefit of the holders of Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become holders of, or
continue to hold, Senior Indebtedness, and such provisions are made for the
benefit of the holders of Senior Indebtedness, and such holders are made
obligees hereunder and any one or more of them may enforce such provisions.
SECTION 1302. No Payment on Securities in Certain Circumstances.
(a) No payment shall be made by or on behalf of the Company on
account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of any series or to acquire any of such
Securities (including any repurchases of such Securities pursuant to the
provisions hereof or thereof at the option of the Holder of such Securities) for
cash or property (other than Junior securities of the Company), or on account of
any redemption provisions of such Securities, in the event of default in payment
of any principal of, premium (if any) or interest on any Senior Indebtedness of
the Company when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise (a "Payment Default"),
unless and until such Payment Default has been cured or waived or otherwise has
ceased to exist.
(b) No payment shall be made by or on behalf of the Company on
account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of any series or to acquire any of such
Securities (including any repurchases of such Securities pursuant to the
provisions hereof or thereof at the option of the Holder of such Securities) for
cash or property (other than Junior securities of the Company), or on account of
any redemption provisions of such Securities, in the event of any event of
default (other than a Payment Default) with respect to any Designated Senior
Indebtedness permitting the holders of such Designated Senior Indebtedness (or a
trustee or other representative on behalf of the holders thereof) to declare
such Designated Senior Indebtedness due and payable prior to the date on which
it would otherwise have become due and payable, upon written notice thereof to
the Company and the Trustee by any holders of Designated Senior Indebtedness (or
a trustee or other representative on behalf of the holders thereof) (the
"Payment Notice"), unless and until such event of default shall have been cured
or waived or otherwise has ceased to exist; provided, that such payments may not
be prevented pursuant
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to this Section 1302(b) for more than 179 days after an applicable Payment
Notice has been received by the Trustee unless the Designated Senior
Indebtedness in respect of which such event of default exists has been declared
due and payable in its entirety, in which case no such payment may be made until
such acceleration has been rescinded or annulled or such Designated Senior
Indebtedness has been paid in full. No event of default that existed or was
continuing on the date of any Payment Notice (whether or not such event of
default is on the same issue of Designated Senior Indebtedness) may be made the
basis for the giving of a second Payment Notice, and only one such Payment
Notice may be given in any 365-day period.
(c) In furtherance of the provisions of Section 1301, in the
event that, notwithstanding the foregoing provisions of this Section 1302, any
payment or distribution of assets of the Company (other than Junior securities
of the Company) shall be received by the Trustee or the Holders of Securities of
any series at a time when such payment or distribution was prohibited by the
provisions of this Section 1302, then, unless such payment or distribution is no
longer prohibited by this Section 1302, such payment or distribution (subject to
the provisions of Section 1307) shall be received and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of the holders of Senior
Indebtedness of the Company, and shall be paid or delivered by the Trustee or
such Holders or such Paying Agent, as the case may be, to the holders of Senior
Indebtedness of the Company remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
of the Company may have been issued, ratably, according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness of the Company held or
represented by each, for application to the payment of all Senior Indebtedness
in full after giving effect to all concurrent payments and distributions to or
for the holders of such Senior Indebtedness.
SECTION 1303. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or similar proceeding or upon assignment for the benefit of
creditors:
(a) the holders of all Senior Indebtedness of the Company
shall first be entitled to receive payments in full before the Holders
of Securities of any series are entitled to receive any payment on
account of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to such Securities (other than Junior
securities of the Company);
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than Junior securities of the Company), to which the Holders of
Securities of any series or the Trustee on behalf of such Holders would
be entitled, except for the provisions of this Article Thirteen, shall
be paid by the liquidating trustee or agent or other Person making such
a payment or distribution directly to the holders of such Senior
Indebtedness or their representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each,
to the extent necessary to make
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payment in full of all such Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Junior
securities of the Company), shall be received by the Trustee or the
Holders of Securities of any series or any Paying Agent (or, if the
Company or any Affiliate of the Company is acting as its own Paying
Agent, money for any such payment or distribution shall be segregated
or held in trust) on account of the principal of, premium (if any) or
interest on or any Additional Amounts with respect to the Securities of
such series before all Senior Indebtedness of the Company is paid in
full, such payment or distribution (subject to the provisions of
Section 1307) shall be received and held in trust by the Trustee or
such Holder or Paying Agent for the benefit of the holders of such
Senior Indebtedness, or their respective representatives, ratably
according to the respective amounts of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment as
provided herein of all such Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions and all
provisions therefor to or for the holders of such Senior Indebtedness,
but only to the extent that as to any holder of such Senior
Indebtedness, as promptly as practical following notice from the
Trustee to the holders of such Senior Indebtedness that such prohibited
payment has been received by the Trustee, Holder(s) or Paying Agent (or
has been segregated as provided above), such holder (or a
representative therefor) notifies the Trustee of the amounts then due
and owing on such Senior Indebtedness, if any, held by such holder and
only the amounts specified in such notices to the Trustee shall be paid
to the holders of such Senior Indebtedness.
SECTION 1304. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of
the Company as provided herein, the Holders of the Securities shall be
subrogated (to the extent of the payments or distributions made to the holders
of such Senior Indebtedness pursuant to the provisions of this Article) to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full. For the purpose
of such subrogation, no such payments or distributions to the holders of such
Senior Indebtedness by the Company, or by or on behalf of the Holders of the
Securities by virtue of this Article Thirteen, which otherwise would have been
made to such Holders shall, as between the Company and such Holders, be deemed
to be payment by the Company or on account of such Senior Indebtedness, it being
understood that the provisions of this Article Thirteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness, on the
other hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article Thirteen shall have been applied, pursuant to the provisions of this
Article Thirteen, to the payment of amounts payable under Senior Indebtedness of
the Company, then such Holders shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess
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of the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full.
SECTION 1305. Obligations of the Company Unconditional.
Nothing contained in this Article Thirteen or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as between
the Company and the Holders of the Securities of any series, the obligation of
the Company, which is absolute and unconditional, to pay to such Holders the
principal of, premium (if any) and interest on and any Additional Amounts with
respect to the Securities of such series as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of such Holders and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article Thirteen, of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy. Notwithstanding anything to the contrary in this Article Thirteen
or elsewhere in this Indenture or in the Securities, upon any distribution of
assets of the Company referred to in this Article Thirteen, the Trustee, subject
to the provisions of Sections 601 and 603, and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
such Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Thirteen so long as such court has been apprised of the
provisions of, or the order, decree or certificate makes reference to, the
provisions of this Article Thirteen.
SECTION 1306. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until a Responsible Officer of the Trustee or any
Paying Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 601 and 603, shall be entitled in all respects conclusively to assume
that no such fact exists.
SECTION 1307. Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article Four shall be for the sole benefit of Holders of the
Securities of series for the benefit of which such amounts were deposited, and,
to the extent allocated for the payment of Securities of such series, shall not
be subject to the subordination provisions of this Article Thirteen. Otherwise,
any deposit of assets with the Trustee or the Paying Agent (whether or not in
trust) for the payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Securities
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shall be subject to the provisions of Sections 1301, 1302, 1303 and 1304;
provided that if prior to two Business Days preceding the date on which by the
terms of this Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either principal of, premium (if
any) or interest on or any Additional Amounts with respect to any Security), the
Trustee or such Paying Agent shall not have received with respect to such assets
the written notice provided for in Section 1306, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary that may be received by it on or after such date;
and provided further that nothing contained in this Article Thirteen shall
prevent the Company from making, or the Trustee from receiving or applying, any
payment in connection with the redemption of Securities if the first publication
of notice of such redemption (whether by mail or otherwise in accordance with
this Indenture) has been made, and the Trustee has received such payment from
the Company, prior to the occurrence of any of the contingencies specified in
Section 1302 or 1303.
SECTION 1308. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination provisions contained in this Article
Thirteen shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with. The holders of Senior Indebtedness
may extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with the Company, all without affecting the liabilities and obligations
of the parties to this Indenture or the Holders of the Securities.
SECTION 1309. Trustee to Effectuate Subordination of Securities.
Each Holder of a Security by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article Thirteen and to protect the rights of the Holders of the Securities
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
of the Company), the filing of a claim for the unpaid balance of his Securities
in the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Senior Indebtedness or their
representative are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders of said
Securities. Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Senior Indebtedness or their representative to authorize or
consent to or accept or adopt on behalf of any Holder of Securities any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Senior Indebtedness or their representative to vote in respect of the claim
of any Holder of the Securities in any such proceeding.
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<PAGE> 75
SECTION 1310. Right of Trustee to Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all of the rights set forth in this Article Thirteen in respect of any Senior
Indebtedness at any time held by it to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
SECTION 1311. Article Thirteen Not to Prevent Events of Default.
The failure to make a payment on account of principal of or
premium (if any) or interest on or any Additional Amounts with respect to the
Securities by reason of any provision of this Article Thirteen shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 501 or in any way prevent the Holders of the Securities from exercising
any right hereunder other than the right to receive payment on the Securities.
SECTION 1312. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities or the
Company or any other Person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article Thirteen or
otherwise. Nothing in this Section 1312 shall affect the obligation of any other
such Person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Indebtedness or their representative.
SECTION 1313. Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Thirteen shall in such case (unless the
context shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section 1313 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
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SECTION 1402. 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 1401, to be held
at such time and at such place in Houston, Texas, in New York, New York, in
London, England, or in any other location, as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
107, not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1401, 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 30 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 Houston, Texas, in New York, New York,
in London, England, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1402(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
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<PAGE> 77
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly that Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series 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 a majority in aggregate 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 or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, 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, whether or not present or represented at
the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be
proved in the manner specified in Section 105. 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 105 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 1402(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
and each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented
by him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder
of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of such
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series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. 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 instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
VERITAS DGC INC.
By
-------------------------------------------
Name:
Title:
, Trustee
------------------------------------
By
-------------------------------------------
Name:
Title:
70
<PAGE> 1
EXHIBIT 5.1
August 30, 1999
Veritas DGC Inc.
3701 Kirby Drive, Suite 112
Houston, Texas 77098
Re: Veritas DGC Inc. -- Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Veritas DGC Inc., a Delaware corporation
("Company"), in connection with the preparation for filing with the Securities
and Exchange Commission of a Registration Statement on Form S-3 (the
Registration Statement") under the Securities Act of 1933, as amended. The
Registration Statement relates to the Company's offer and sale from time to time
of (i) unsecured debt securities, in one or more series, consisting of notes,
debentures or other evidences of indebtedness ("Debt Securities"), (ii) shares
of preferred stock, par value $.01 per share, of the Company, in one or more
series ("Preferred Stock"), and (iii) shares of common stock, par value $.01 per
share, of the Company ("Common Stock"). As set forth in the Registration
Statement, the Company's aggregate initial offering price of the Debt
Securities, Preferred Stock and Common Stock (collectively, the "Securities")
will not exceed $200,000,000. The Securities will be offered in amounts, at
prices and on terms to be determined in light of market conditions at the time
of sale and to be set forth in supplements to the prospectus contained in the
Registration Statement.
We have examined such corporate records, documents, instruments and
certificates of the Company, and have reviewed such questions of law as we have
deemed necessary, relevant or appropriate to enable us to render the opinion
expressed herein. In such examination, we have assumed without independent
investigation the authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of all natural persons,
and the conformity of any documents submitted to us as copies to their
respective originals. As to certain questions of fact material to this opinion,
we have relied without independent investigation upon statements or certificates
of public officials and officers of the Company.
In connection with this opinion, we have assumed that (i) a prospectus
supplement will have been prepared and filed with the Securities and Exchange
Commission describing any Securities offered thereby, and (ii) a definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto.
Based upon the foregoing examination and review, we are of the opinion
that:
<PAGE> 2
Veritas DGC Inc.
August 30, 1999
Page 2
(i) When (a) the applicable indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"),
(b) the Board of Directors of the Company (or a duly
authorized committee thereof) has taken all necessary action
to approve the issuance and terms of any Debt Securities, (c)
the terms of such Debt Securities and of their issuance and
sale have been duly established in conformity with the
applicable indenture so as not to violate any applicable law
or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with
any requirements or restrictions imposed by any court or
governmental body having jurisdiction over the Company and (d)
such Debt Securities have been duly executed and authenticated
in accordance with the applicable indenture and issued and
sold as contemplated in the Registration Statement, such Debt
Securities will constitute valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and
to general equitable principles, and any shares of Common
Stock issued upon conversion of any Debt Securities in
accordance with the terms of the applicable indenture will be
duly authorized, validly issued, fully paid and nonassessable.
(ii) When (a) the Board of Directors of the Company (or a duly
authorized committee thereof) has taken all necessary
corporate action to approve the issuance and sale of any
shares of Common Stock or of any series of Preferred Stock,
and (b) such shares have been issued and sold as contemplated
in the Registration Statement, all such shares will be duly
authorized, validly issued, fully paid and nonassesssable.
The foregoing opinions are limited to the laws of the United States of
America and to the General Corporation Law of the State of Delaware.
This Firm consents to the filing of this opinion as an exhibit to the
Registration Statement and further consents to all references to this Firm in
Registration Statement.
Very truly yours,
PORTER & HEDGES, L.L.P.
<PAGE> 1
EXHIBIT 12
VERITAS DGC INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Nine Months Years Ended July 31,
Ended -------------------------------------------------------------------
April 30, 1999 1998 1997 1996 1995 1994
--------------- ----------- ---------- --------- ----------- -----------
(in thousands of dollars)
<S> <C> <C> <C> <C> <C> <C>
Pre-tax income before equity in
(earnings) loss of equity
investees(A) $ 29,067 $100,204 $ 30,309 $ 4,403 $ 14,587 $ 540
Fixed Charges 24,709 27,277 19,928 14,869 14,387 10,757
Capitalized Interest (100) (800)
Amortization of capitalized interest 120
--------- -------- -------- -------- -------- --------
Totals 53,796 126,681 50,237 19,272 28,974 11,297
========= ======== ======== ======== ======== ========
Fixed charges:
Interest expense(B) 9,156 7,318 7,484 5,466 5,170 3,213
Interest capitalized 100 800
Interest portion of rental
expense(C) 15,453 19,159 12,444 9,403 9,217 7,544
--------- -------- -------- -------- -------- --------
Total fixed charges 24,709 27,277 19,928 14,869 14,387 10,757
Ratio of earnings to fixed charges 2.18 4.64 2.52 1.30 2.01 1.05
========= ======== ======== ======== ======== ========
</TABLE>
- ----------------
(A) There was no distributed income from equity investees for any of the
periods presented.
(B) Interest expense includes amortization of debt issue cost.
(C) The portion of rent included in the calculation is believed to be a
reasonable approximation of the interest factor.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated October 1, 1998 relating to the
consolidated financial statements, which appear in Veritas DGC Inc.'s Annual
Report on Form 10-K for the year ended July 31, 1998. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Houston, Texas
August 30, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated September 20, 1996 relating to the
consolidated financial statements of Veritas Energy Services Inc., as of and for
the nine months ended July 31, 1996. Our report appears in Veritas DGC Inc.'s
Annual Report on Form 10-K for the year ended July 31, 1998. We also consent to
the reference to us under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Chartered Accountants
Calgary, Alberta
August 30, 1999
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Veritas DGC Inc. on Form S-3 of our report dated October 10, 1996, appearing in
the Annual Report on Form 10-K of Veritas DGC Inc. for the year ended July 31,
1996. We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
August 30, 1999
