REGISTRATION NO. 333-___
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONTINENTAL AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 4512 74-2099724
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
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2929 ALLEN PARKWAY
HOUSTON, TEXAS 77019
(713) 834-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JEFFERY A. SMISEK, ESQ. COPIES OF CORRESPONDENCE TO:
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CONTINENTAL AIRLINES, INC. JOHN K. HOYNS, ESQ.
2929 ALLEN PARKWAY, SUITE 2010 HUGHES HUBBARD & REED LLP
HOUSTON, TEXAS 77019 ONE BATTERY PARK PLAZA
(713) 834-2950 NEW YORK, NEW YORK 10004-1482
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE TO THE PUBLIC: From time to time after this
Registration Statement becomes effective.
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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 so offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |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. |_|
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM OFFERING PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PRICE MAXIMUM AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1)(2)
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Debt Securities (3) $400,000,000 (4) (5) $400,000,000 $121,213
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(1) The proposed maximum per unit and aggregate offering prices per class of
security will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities registered
hereunder.
(2) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act").
(3) Subject to note (4) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant. If any Debt Securities are issued at an
original issue discount, then the principal amount will be increased, but
the aggregate initial offering price will not exceed $400,000,000 less the
dollar amount of the aggregate initial offering price of any securities
previously issued hereunder.
(4) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$400,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. The securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(5) Not required to be included in accordance with General Instruction II.D. of
Form S-3 under the Securities Act.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED JUNE __, 1997
PROSPECTUS
$400,000,000
CONTINENTAL AIRLINES, INC.
DEBT SECURITIES
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Continental Airlines, Inc. ("Continental", or the "Company") may from time
to time offer, together or separately, its debt securities, consisting of
debentures, notes and/or other evidences of indebtedness representing unsecured
obligations of Continental (the "Debt Securities"), in amounts, at prices and on
terms to be determined at the time of offering. The Debt Securities offered
pursuant to this Prospectus may be issued as unsecured and unsubordinated Debt
Securities ("Senior Debt Securities") or as unsecured and subordinated Debt
Securities ("Subordinated Debt Securities"), in one or more series and will be
limited to $400,000,000 aggregate public offering price and exercise price (or
its equivalent (based on the applicable exchange rate at the time of sale) in
one or more foreign currencies or currency units).
The specific terms of the particular Debt Securities in respect of which
this Prospectus is being delivered (the "Offered Securities") will be set forth
in a supplement to this Prospectus (the "Prospectus Supplement") which will be
delivered together with this Prospectus including, where applicable, the
specific designation (including whether the Offered Securities are Senior Debt
Securities or Subordinated Debt Securities), aggregate principal amount,
ranking, authorized denomination, maturity, premium, if any, the rate (which may
be fixed or variable), time and method of calculating payments of interest, if
any, the place or places where principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable, the currency in which principal
of, premium, if any, and interest, if any, on such Debt Securities will be
payable, any terms of redemption at the option of Continental or the holder, any
sinking fund provisions, the initial public offering price and other special
terms, together with any other terms in connection with the offering and sale of
the Offered Securities, and the net proceeds to Continental from such offering.
The Debt Securities may be denominated in United States dollars or, at the
option of Continental if so specified in the applicable Prospectus Supplement,
in one or more foreign currencies or currency units. The Debt Securities may be
issued in registered form or bearer form, or both. If so specified in the
applicable Prospectus Supplement, Debt Securities of a series may be issued in
whole or in part in the form of one or more temporary or permanent global
securities.
(CONTINUED ON THE FOLLOWING PAGE.)
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(CONTINUED FROM THE PRIOR PAGE.)
The Senior Debt Securities will rank on a parity with all unsecured and
unsubordinated indebtedness of Continental, and the Subordinated Debt Securities
will be subordinated in right of payment to all Senior Indebtedness (as
hereinafter defined). See "Description of Debt Securities--Subordination of
Subordinated Debt Securities."
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Continental may sell the Debt Securities to or through underwriters,
through dealers or agents or directly to purchasers. See "Plan of Distribution."
The Prospectus Supplement will set forth the names of any underwriters, dealers
or agents, if any, involved in the sale of the Offered Securities in respect of
which this Prospectus is being delivered, the proposed amounts, if any, to be
purchased by underwriters and the compensation, if any, of such underwriters or
agents.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF DEBT SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is June ___, 1997.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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AVAILABLE INFORMATION
Continental has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments, exhibits and schedules, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Debt Securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, and to
which reference is hereby made. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved.
Continental is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Commission. Such
reports and other information, as well as the Registration Statement may be
inspected at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, Room 1024, and at the regional
offices of the Commission located at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and at 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies of such materials may be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates Such material may be accessed electronically by means
of the Commission's Web site (http://www.sec.gov) that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission. In addition, reports, proxy statements and
other information concerning Continental may be inspected and copied at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
Continental is the successor to Continental Airlines Holdings, Inc.
("Holdings"), which merged with and into Continental on April 27, 1993. Holdings
had also been subject to the informational requirements of the Exchange Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 0-9781) are
hereby incorporated by reference in this Prospectus: (i) Continental's Annual
Report on Form 10-K for the year ended December 31, 1996, (ii) Continental's
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1997 and
(iii) Continental's Current Reports on Form 8-K filed January 6, March 21, April
18, May 28 and June 10, 1997.
All reports and any definitive proxy or information statements filed by
Continental pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Debt Securities offered hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
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document incorporated or deemed to be incorporated herein by reference, or
contained in this Prospectus, 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 which also is or is deemed to be
incorporated by reference herein or contained in the Prospectus Supplement to
the Offered Securities 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.
Continental will provide without charge to any person to whom a copy of
this Prospectus has been delivered, upon written or oral request, a copy of any
or all of the foregoing documents incorporated herein by reference (other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to Continental
Airlines, Inc., 2929 Allen Parkway, Suite 2010, Houston, Texas 77019, Attention:
Secretary, telephone (713) 834-2950.
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THE COMPANY
Continental Airlines, Inc. is a major United States air carrier engaged in
the business of transporting passengers, cargo and mail. Continental is the
fifth largest United States airline (as measured by revenue passenger miles in
the first five months of 1997) and, together with its wholly owned subsidiary,
Continental Express, Inc. ("Express"), and its 91%-owned subsidiary, Continental
Micronesia, Inc. ("CMI"), each a Delaware corporation, serves 195 airports
worldwide as of June 5, 1997.
The Company operates its route system primarily through domestic hubs at
Newark, George Bush Intercontinental in Houston, Cleveland, and a Pacific hub on
the island of Guam. Each of Continental's three domestic hubs is located in a
large business and population center, contributing to a high volume of "origin
and destination" traffic. The Guam hub is strategically located to provide
service from Japanese and other Asian cities to popular resort destinations in
the western Pacific. Continental is the primary carrier at each of these hubs,
accounting for 54%, 79%, 54% and 68% of average daily jet departures,
respectively, as of June 5, 1997.
The Company is a Delaware corporation. Its executive offices are located at
2929 Allen Parkway, Suite 2010, Houston, Texas 77019, and its
telephone number is (713) 834-2950.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the net
proceeds to Continental from the sale of the Debt Securities offered hereby will
be used for general corporate purposes, which may include the repayment of
outstanding indebtedness and financing of capital expenditures. The Company may
also engage in additional public or private financings of a character and amount
to be determined.
RATIO OF EARNINGS TO FIXED CHARGES
The following information for the year ended December 31, 1992 and for the
period January 1, 1993 through April 27, 1993 relates to Continental's
predecessor, Holdings. Information for the period April 28, 1993 through
December 31, 1993, for the years ended December 31, 1994, 1995 and 1996 and for
the three months ended March 31, 1996 and 1997 relates to Continental. The
information as to Continental has not been prepared on a consistent basis of
accounting with the information as to Holdings due to Continental's adoption,
effective April 27, 1993, of fresh start reporting in accordance with the
American Institute of Certified Public Accountants' Statement of Position 90-7
- -- "Financial Reporting by Entities in Reorganization Under the Bankruptcy Code"
("SOP 90-7").
For the year ended December 31, 1992, for the periods January 1, 1993
through April 27, 1993 and April 28, 1993 through December 31, 1993 and for the
year ended December 31, 1994, earnings were not sufficient to cover fixed
charges. Additional earnings of $131 million, $979 million, $60 million and $667
million, respectively, would have been required to achieve ratios of earnings to
fixed charges of 1.0. The ratio of earnings to fixed charges for the years ended
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December 31, 1995 and December 31, 1996 was 1.53 and 1.81, respectively. The
ratio of earnings to fixed charges for the three months ended March 31, 1996 and
March 31, 1997 was 1.70 and 1.88, respectively. For purposes of calculating this
ratio, earnings consist of earnings before taxes, minority interest and
extraordinary items plus interest expense (net of capitalized interest), the
portion of rental expense representative of interest expense and amortization of
previously capitalized interest. Fixed charges consist of interest expense and
the portion of rental expense representative of interest expense.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture, between
Continental, as issuer, and an institution to be named in the applicable
Prospectus Supplement, as Trustee (the "Senior Indenture"). The Subordinated
Debt Securities are to be issued under an Indenture, between Continental, as
issuer, and an institution to be named in the applicable Prospectus Supplement,
as Trustee (the "Subordinated Indenture"). The Senior Indenture and the
Subordinated Indenture are referred to herein individually as an "Indenture" and
collectively as the "Indentures." The Trustee under each Indenture is referred
to herein as the "Trustee." A copy of the form of each Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The statements herein relating to the Debt Securities and the Indentures
are summaries, and reference is made to the detailed provisions of the
Indentures, including the definitions therein of certain terms capitalized in
this Prospectus. Where no distinction is made between the Senior Debt Securities
and the Subordinated Debt Securities or between the Senior Indenture and the
Subordinated Indenture, such summaries refer to any Debt Securities and either
Indenture. Whenever particular defined terms of the Indentures are referred to
herein or in a Prospectus Supplement, such defined terms are incorporated herein
or therein by reference.
The anticipated market for the Debt Securities and the specific use of
proceeds of an offering of such securities will be set forth in the applicable
Prospectus Supplement.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provide that Debt Securities may be
issued from time to time in one or more series. The Senior Debt Securities will
be unsecured and unsubordinated obligations of Continental and will rank on a
parity with all other unsecured and unsubordinated indebtedness of Continental.
The Subordinated Debt Securities will be unsecured obligations of Continental
and, as set forth below under "Subordination of Subordinated Debt Securities,"
will be subordinated in right of payment to all Senior Indebtedness of
Continental.
Reference is made to the Prospectus Supplement which accompanies this
Prospectus for a description of the specific series of Debt Securities being
offered thereby, including: (1) the specific designation of such Debt
Securities, including whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (2) the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of such Debt Securities
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will mature or the method of determining such date or dates; (4) the rate or
rates (which may be fixed or variable) at which such Debt Securities will bear
interest, if any, or the method of calculating such rate or rates; (5) the date
or dates from which interest, if any, will accrue or the method by which such
date or dates will be determined; (6) the date or dates on which interest, if
any, will be payable and the record date or dates therefor; (7) the place or
places where principal of, premium, if any, and interest, if any, on such Debt
Securities will be payable; (8) the period or periods within which, the price or
prices at which, the currency or currencies (including currency units) in which,
and the terms and conditions upon which, such Debt Securities may be redeemed,
in whole or in part, at the option of Continental; (9) the obligation, if any,
of Continental to redeem or purchase such Debt Securities pursuant to any
sinking fund or analogous provisions, upon the happening of specified events, or
at the option of a holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which, such Debt
Securities shall be redeemed or purchased, in whole or in part, pursuant to such
obligations; (10) the denominations in which such Debt Securities are authorized
to be issued; (11) the currency or currency units for which Debt Securities may
be purchased or in which Debt Securities may be denominated and/or the currency
or currency units in which principal of, premium, if any, and/or interest, if
any, on such Debt Securities will be payable or redeemable and whether
Continental or the holders of any such Debt Securities may elect to receive
payments in respect of such Debt Securities in a currency or currency units
other than that in which such Debt Securities are stated to be payable or
redeemable; (12) if other than the principal amount thereof, the portion of the
principal amount of such Debt Securities which will be payable upon declaration
of the acceleration of the maturity thereof or the method by which such portion
shall be determined; (13) the person to whom any interest on any such Debt
Security shall be payable if other than the person in whose name such Debt
Security is registered on the applicable record date; (14) any addition to, or
modification or deletion of, any Event of Default or any covenant of Continental
specified in the Indenture with respect to such Debt Securities; (15) the
application, if any, of such means of defeasance or covenant defeasance as may
be specified for such Debt Securities and coupons appertaining thereto; (16)
whether such Debt Securities are to be issued in whole or in part in the form of
one or more temporary or permanent global securities and, if so, the identity of
the depositary for such global security or securities; (17) any index used to
determine the amount of payments of principal of (and premium, if any) and
interest, if any, on such Debt Securities; (18) any provisions relating to the
exchange of such Debt Securities; and (19) any other special terms pertaining to
such Debt Securities. Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities will not be listed on any securities exchange.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued in fully registered form without coupons. Where Debt
Securities of any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special Federal
income tax considerations, applicable to any such Debt Securities and to payment
on and transfer and exchange of such Debt Securities will be described in the
applicable Prospectus Supplement. Bearer Debt Securities will be transferable by
delivery.
Debt Securities may be sold at a discount below their stated principal
amount, bearing no interest or interest at a rate which at the time of issuance
is below market rates. Certain Federal income tax consequences and special
<PAGE>
considerations applicable to any such Debt Securities will be described in the
applicable Prospectus Supplement.
If the purchase price of any Debt Securities is payable in one or more
foreign currencies or currency units or if any Debt Securities are denominated
in one or more foreign currencies or currency units or if the principal of,
premium, if any, or interest, if any, on any Debt Securities is payable in one
or more foreign currencies or currency units, the restrictions, elections,
certain Federal income tax considerations, specific terms and other information
with respect to such issue of Debt Securities and such foreign currency or
currency units will be set forth in the applicable Prospectus Supplement.
DENOMINATIONS, PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Registered Debt Securities will be issuable in denominations of $1,000 and
integral multiples of $1,000, and Bearer Debt Securities will be issuable in the
denomination of $5,000 or, in each case, in such other denominations and
currencies as may be in the terms of the Debt Securities of any particular
series. Unless otherwise provided in the applicable Prospectus Supplement,
payments in respect of the Debt Securities will be made, subject to any
applicable laws and regulations, in the designated currency at the office or
agency of Continental maintained for that purpose as Continental may designate
from time to time, except that, at the option of Continental, interest payments,
if any, on Debt Securities in registered form may be made (i) by checks mailed
by the Trustee to the holders of Debt Securities entitled thereto at their
registered addresses or (ii) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Register. Unless otherwise indicated
in an applicable Prospectus Supplement, payment of any installment of interest
on Debt Securities in registered form will be made to the Person in whose name
such Debt Security is registered at the close of business on the regular record
date for such interest.
Payment in respect of Debt Securities in bearer form will be payable in the
currency and in the manner designated in the applicable Prospectus Supplement,
subject to any applicable laws and regulations, at such paying agencies outside
the United States as Continental may appoint from time to time. The Paying
Agents outside the United States, if any, initially appointed by Continental for
a series of Debt Securities will be named in the applicable Prospectus
Supplement. Continental may at any time designate additional Paying Agents or
rescind the designation of any Paying Agents, except that, if Debt Securities of
a series are issuable as Registered Debt Securities, Continental will be
required to maintain at least one Paying Agent in each Place of Payment for such
series and, if Debt Securities of a series are issuable as Bearer Debt
Securities, Continental will be required to maintain a Paying Agent in a Place
of Payment outside the United States where Debt Securities of such series and
any coupons appertaining thereto may be presented and surrendered for payment.
Continental will have the right to require a holder of any Debt Security, in
connection with the payment of the principal of, premium, if any, and interest,
if any, on such Debt Security, to certify information to Continental or, in the
absence of such certification, Continental will be entitled to rely on any legal
presumption to enable Continental to determine its duties and liabilities, if
any, to deduct or withhold taxes, assessments or governmental charges from such
payment.
<PAGE>
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of Continental maintained for such purpose as designated by Continental from
time to time. Debt Securities may be transferred or exchanged without service
charge, other than any tax or other governmental charge imposed in connection
therewith.
In the event of any redemption in part, Continental shall not be required
to (i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before any
selection of Debt Securities of that series to be redeemed and ending at the
close of business on (A) if Debt Securities of the series are issuable only as
Registered Debt Securities, the day of mailing of the relevant notice of
redemption and (B) if Debt Securities of the series are issuable as Bearer Debt
Securities, the day of the first publication of the relevant notice of
redemption or, if Debt Securities of the series are also issuable as Registered
Debt Securities and there is no publication, the mailing of the relevant notice
of redemption; (ii) register the transfer of or exchange any Registered Debt
Securities, or portion thereof, called for redemption or otherwise surrendered
for repayment, except the unredeemed or unrepaid portion of any Registered
Security being redeemed or repaid in part; or (iii) exchange any Bearer Security
called for redemption, except to exchange such Bearer Security for a Registered
Security of that series and like tenor which is immediately surrendered for
redemption.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, the
following provisions will apply to the Subordinated Debt Securities.
The payment of the principal of, premium, if any, and interest, if any, on,
and the redemption or repurchase of, the Subordinated Debt Securities and
coupons will be subordinated and junior in right of payment, to the extent set
forth in the Subordinated Indenture, to the prior payment in full of all Senior
Indebtedness of Continental. The Subordinated Debt Securities will rank PARI
PASSU with all existing and future subordinated indebtedness of Continental,
except that the Subordinated Debt Securities will rank senior to any future
subordinated indebtedness or other subordinated obligations of Continental which
by its terms states that it will rank junior to the Subordinated Debt
Securities. Notwithstanding the foregoing, payment from the money or the
proceeds of U.S. Government Obligations held in any defeasance trust described
under "Defeasance" below is not subordinate to any Senior Indebtedness or
subject to the restrictions described herein.
Senior Indebtedness includes, with respect to Continental, (i) the
principal, premium, if any, interest and other amounts in respect of (A)
indebtedness of Continental for money borrowed and (B) indebtedness evidenced by
securities, debentures, bonds or other similar instruments issued by
Continental, (ii) all capital lease obligations of Continental, (iii) all
obligations of Continental issued or assumed as the deferred purchase price of
property, all conditional sale obligations of Continental and all obligations of
Continental under any title retention agreement (but excluding trade accounts
<PAGE>
payable arising in the ordinary course of business), (iv) all obligations of
Continental for the reimbursement on any letter of credit, bankers acceptance,
security purchase facility or similar credit transaction, (v) all obligations of
the type referred to in clauses (i) through (iv) above of other persons for the
payment of which Continental is responsible or liable as obligor, guarantor or
otherwise, and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other persons secured by any lien on any property or asset
of Continental (whether or not such obligation is assumed by Continental),
except for (1) any such indebtedness or other obligation that is by its terms
subordinated to or PARI PASSU with the Subordinated Debt Securities, (2) any
indebtedness between or among Continental and its affiliates, including all
other debt securities and guarantees in respect of those debt securities,
initially issued to any other trust, or a trustee of such trust, partnership or
other entity affiliated with Continental that, directly or indirectly, is a
financing vehicle of Continental (a "financing entity") in connection with the
issuance by such financing entity of preferred securities or other securities
that rank PARI PASSU with, or junior to the Subordinated Debt Securities and (3)
the Company's guarantee of certain payments under the 8-1/2% Convertible Trust
Originated Preferred Securities issued by Continental Airlines Finance Trust and
the Company's 8-1/2% Convertible Subordinated Deferrable Interest Debentures due
2020. Such Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness. The
payment of the principal of, premium, if any, and interest on the Securities and
coupons shall rank senior in right of payment to the Company's guarantee of
certain payments under the 8-1/2% Convertible Trust Originated Preferred
Securities issued by Continental Airlines Finance Trust and the Company's 8-1/2%
Convertible Subordinated Deferrable Interest Debentures due 2020.
No payment on account of principal of, premium, if any, or interest on, or
redemption or repurchase of, the Subordinated Debt Securities or any coupon or
any deposit pursuant to the provisions described under "Defeasance" below may be
made by the Company if there is a default in the payment of principal, premium,
if any, sinking funds or interest (including a default under any repurchase or
redemption obligation) or other amounts with respect to any Senior Indebtedness
or if any other event of default with respect to any Senior Indebtedness,
permitting the holders thereof to accelerate the maturity thereof, shall have
occurred and shall not have been cured or waived or shall not have ceased to
exist after written notice to the Company and the Trustee by any holder of
Senior Indebtedness. Upon any acceleration of the principal due on the
Subordinated Debt Securities or payment or distribution of assets of the Company
to creditors upon any dissolution, winding up, liquidation or reorganization,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all principal, premium, if any, sinking funds and interest or
other amounts due on all Senior Indebtedness must be paid in full before the
Holders of the Subordinated Debt Securities are entitled to receive any payment.
By reason of such subordination, in the event of insolvency, creditors of the
Company who are holders of Senior Indebtedness may recover more, ratably, than
the Holders of the Subordinated Debt Securities, and such subordination may
result in a reduction or elimination of payments to the Holders of the
Subordinated Debt Securities.
In addition, the Subordinated Debt Securities will be structurally
subordinated to all indebtedness and other liabilities (including trade payables
<PAGE>
and lease obligations) of the Company's subsidiaries, as any right of the
Company to receive any assets of its subsidiaries upon their liquidation or
reorganization (and the consequent right of the Holders of the Subordinated Debt
Securities to participate in those assets) will be effectively subordinated to
the claims of that subsidiary's creditors (including trade creditors), except to
the extent that the Company itself is recognized as a creditor of such
subsidiary, in which case the claims of the Company would still be subordinate
to any security interest in the assets of such subsidiary and any indebtedness
of such subsidiary senior to that held by the Company.
The Subordinated Indenture does not limit the Company's ability to incur
Senior Indebtedness or any other indebtedness.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Registered Global
Security") that will be deposited with a depositary (the "Depositary") or with a
nominee for the Depositary identified in the applicable Prospectus Supplement.
In such a case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Registered Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive certificated
form, a Registered Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Registered Global Security
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such
successor Depositary and except in the circumstances described in the applicable
Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the applicable Prospectus Supplement. Continental
expects that the following provisions will apply to depositary arrangements.
Upon the issuance of any Registered Global Security, and the deposit of
such Registered Global Security with or on behalf of the Depositary for such
Registered Global Security, the Depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("participants") that have accounts with the Depositary or its
nominee. The accounts to be credited will be designated by the underwriters or
agents engaging in the distribution of such Debt Securities or by Continental,
if such Debt Securities are offered and sold directly by Continental. Ownership
of beneficial interests in a Registered Global Security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Registered Global Security will
be shown on, and the transfer of that ownership interest will be effected only
through, records maintained by the Depositary for such Registered Global
Security or by its nominee. Ownership of beneficial interests in such Registered
Global Security by persons that hold through participants will be shown on, and
the transfer of that ownership interest within such participant will be effected
<PAGE>
only through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under the Indentures. Unless otherwise specified in the applicable
Prospectus Supplement and except as specified below, owners of beneficial
interests in such Registered Global Security will not be entitled to have Debt
Securities of the series represented by such Registered Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the holders thereof for any purposes under the Indentures.
Accordingly, each person owning a beneficial interest in such Registered Global
Security must rely on the procedures of the Depositary and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest, to exercise any rights of a holder under the
Indentures. The Depositary may grant proxies and otherwise authorize
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a holder is entitled to give or
take under the Indentures. Continental understands that, under existing industry
practices, if Continental requests any action of holders or an owner of a
beneficial interest in which Registered Global Security desires to give any
notice or take any action a holder is entitled to give or take under the
Indentures, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Unless otherwise specified in the applicable Prospectus Supplement,
payments with respect to principal, premium, if any, and interest, if any, on
Debt Securities represented by a Registered Global Security registered in the
name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security.
Continental expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Registered Global Security as shown on the records
of such Depositary. Continental also expects that payments by participants to
owners of beneficial interests in such Registered Global Security held through
such participants will be governed by standing instructions and customary
practices, as is now the case with the securities held for the accounts of
customers registered in "street names," and will be the responsibility of such
participants. None of Continental, the Trustee or any agent of Continental shall
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Registered
<PAGE>
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depositary for any Debt Securities represented by a Registered Global Security
is at any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by Continental within ninety days, Continental will
issue such Debt Securities in definitive certificated form in exchange for such
Registered Global Security. In addition, Continental may at any time and in its
sole discretion determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive certificated form in exchange
for all of the Registered Global Securities representing such Debt Securities.
Further, if Continental so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Registered Global Security
representing Debt Securities of such series may, on terms acceptable to
Continental and the Depositary for such Registered Global Security, receive Debt
Securities of such series in definitive form registered in the name of such
beneficial owner or its designee.
CONSOLIDATION, MERGER OR SALE BY CONTINENTAL
Each Indenture provides that Continental shall not merge into or
consolidate with any other corporation or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its assets to any Person,
unless (i) the successor, resulting or acquiring Person is a corporation
organized and existing under the laws of the United States of America or a State
thereof or the District of Columbia and such corporation expressly assumes by
supplemental indenture all the obligations of Continental under the Debt
Securities and any coupons appertaining thereto and the obligations of
Continental under the Indentures, (ii) immediately after giving effect to such
merger or consolidation, or such sale, conveyance, transfer, lease or other
disposition, no Default or Event of Default shall have occurred and be
continuing and (iii) certain other conditions are met. In the event a successor,
resulting or acquiring corporation assumes the obligations of Continental, such
successor, resulting or acquiring corporation shall succeed to and be
substituted for Continental under the Indentures and under the Debt Securities
and any coupons appertaining thereto and all obligations of Continental shall
terminate. In the event of any such permitted consolidation, merger, sale,
conveyance, disposition or other change of control transaction (including a
highly leveraged transaction), the holders of the Debt Securities will not have
the right to require redemption thereof or similar rights unless otherwise
provided in the applicable Prospectus Supplement.
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Events of Default with respect to Debt Securities of any series issued
thereunder are defined in the Indentures as being: default for thirty days in
payment of any interest on any Debt Securities of that series or any coupon
appertaining thereto or any additional amount payable with respect to Debt
Securities of such series as specified in the applicable Prospectus Supplement
when due; default in payment of the principal of or premium, if any, on any Debt
Securities of that series when due; failure to deposit any sinking fund payment
when and as due by the terms of the Debt Securities of that series; default for
<PAGE>
sixty days after notice to Continental by the Trustee for such series, or by the
holders of 25% in aggregate principal amount of the Debt Securities of such
series then outstanding, in the performance of any other agreement applicable to
the Debt Securities of that series, in the Indenture or in any supplemental
indenture or board resolution referred to therein under which the Debt
Securities of that series may have been issued; and certain events of
bankruptcy, insolvency or reorganization of Continental. Any other Events of
Default applicable to a specified series of Debt Securities will be described in
the applicable Prospectus Supplement. An Event of Default with respect to a
particular series of Debt Securities will not necessarily be an Event of Default
with respect to any other series of Debt Securities.
The Indentures provide that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series issued thereunder and
is continuing, the Trustee for such series or the holders of 25% in aggregate
principal amount of all of the outstanding Debt Securities of that series, by
written notice to Continental (and to the Trustee for such series, if notice is
given by such holders of Debt Securities), may declare the principal (or, if the
Debt Securities of that series are original issue discount Debt Securities or
indexed Debt Securities, such portion of the principal amount specified in the
applicable Prospectus Supplement) of all the Debt Securities of that series to
be due and payable.
The Indentures provide that the Trustee for any series of Debt Securities
shall, within ninety days after the occurrence of a Default known to it with
respect to Debt Securities of that series, give to the holders of the Debt
Securities of that series notice of all such uncured Defaults; PROVIDED, that
such notice shall not be given until 60 days after the occurrence of a Default
with respect to Debt Securities of that series involving a failure to perform a
covenant other than the obligation to pay principal, premium, if any, or
interest, if any, or make a mandatory sinking fund payment; and PROVIDED
FURTHER, that, except in the case of default in payment on the Debt Securities
of that series, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers (as defined therein) in good faith
determines that withholding such notice is in the interest of the holders of the
Debt Securities of that series. "Default" means any event which is, or, after
notice or passage of time or both, would be, an Event of Default.
The Indentures provide that the Trustee will be under no obligation to
exercise any of its rights or powers thereunder at the request or direction of
any of the Holders, unless such Holders shall have offered to the Trustee
reasonable indemnity. Subject to such provisions for indemnification of the
Trustee, the Indentures provide that the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected (with
each such series voting as a class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee for such
series, or exercising any trust or power conferred on such Trustee.
The Indentures include a covenant that Continental will file annually with
the Trustee a certificate as to Continental's compliance with all conditions and
covenants of the applicable Indenture.
<PAGE>
The holders of not less than a majority in aggregate principal amount of
any series of Debt Securities by notice to the Trustee for such series may
waive, on behalf of the holders of all Debt Securities of such series, any past
Default or Event of Default with respect to that series and its consequences,
and may rescind and annul a declaration of acceleration with respect to that
series (unless a judgment or decree based on such acceleration has been obtained
and entered), except a Default or Event of Default in the payment of the
principal of, premium, if any, or interest, if any, on any Debt Security (and
any acceleration resulting therefrom) and certain other defaults.
MODIFICATION OF THE INDENTURES
The Indentures contain provisions permitting Continental and the Trustee to
enter into one or more supplemental indentures without the consent of the
holders of any of the Debt Securities in order (i) to evidence the succession of
another corporation to Continental and the assumption of the covenants of
Continental by a successor; (ii) to add to the covenants of Continental or
surrender any right or power of Continental; (iii) to add additional Events of
Default with respect to any series; (iv) to add or change any provisions to such
extent as necessary to permit or facilitate the issuance of Debt Securities in
bearer form or in global form; (v) under certain circumstances to add to, change
or eliminate any provision affecting Debt Securities not yet issued; (vi) to
secure the Debt Securities; (vii) to establish the form or terms of Debt
Securities; (viii) to evidence and provide for successor Trustees; (ix) if
allowed without penalty under applicable laws and regulations, to permit payment
in respect of Debt Securities in bearer form in the United States; (x) to
correct or supplement any inconsistent provisions or to make any other
provisions with respect to matters or questions arising under the Indentures,
PROVIDED that such action does not adversely affect the interests of any holder
of Debt Securities of any series issued under such Indentures in any material
respect; or (xi) to cure any ambiguity or correct any mistake.
The Indentures also contain provisions permitting Continental and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected by such
supplemental indenture, to execute supplemental indentures adding any provisions
to or changing or eliminating any of the provisions of the Indentures or any
supplemental indenture or modifying the rights of the holders of Debt Securities
of such series, except that no such supplemental indenture may, without the
consent of the holder of each Debt Security so affected, (i) change the time for
payment of principal or interest, if any, on any Debt Security; (ii) reduce the
principal of, or any installment of principal of, or interest, if any, on any
Debt Security; (iii) reduce the amount of premium, if any, payable upon the
redemption of any Debt Security; (iv) reduce the amount of principal payable
upon acceleration of the maturity of an Original Issue Discount Debt Security;
(v) change the coin or currency in which any Debt Security or any premium or
interest thereon is payable; (vi) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security; (vii) reduce
the percentage in principal amount of the outstanding Debt Securities of any
series the consent of whose holders is required for modification or amendment of
the Indentures or for waiver of compliance with certain provisions of the
Indentures or for waiver of certain defaults; (viii) change the obligation of
<PAGE>
Continental to maintain an office or agency in the places and for the purposes
specified in the Indentures; or (ix) modify any of the foregoing provisions.
DEFEASANCE
If indicated in the applicable Prospectus Supplement, Continental may elect
either (i) to defease and be discharged from any and all obligations with
respect to the Debt Securities of or within any series (except as described
below) ("defeasance") or (ii) to be released from its obligations with respect
to certain covenants applicable to the Debt Securities of or within any series
("covenant defeasance"), upon the deposit with the Trustee for such series (or
other qualifying trustee), in trust for such purpose, of money and/or Government
Obligations which through the payment of principal and interest in accordance
with their terms will provide money in the amount sufficient to pay the
principal of, premium, if any, and interest, if any, on such Debt Securities to
Maturity or redemption, as the case may be, and any mandatory sinking fund or
analogous payments thereon. Upon the occurrence of a defeasance, Continental
will be deemed to have paid and discharged the entire indebtedness represented
by such Debt Securities and any coupons appertaining thereto and to have
satisfied all of its other obligations under such Debt Securities and any
coupons appertaining thereto (except for (i) the rights of holders of such Debt
Securities to receive, solely from the trust funds deposited to defease such
Debt Securities, payments in respect of the principal of, premium, if any, and
interest, if any, on such Debt Securities or any coupons appertaining thereto
when such payments are due and (ii) certain other obligations as provided in the
Indentures). Upon the occurrence of a covenant defeasance, Continental will be
released only from its obligations to comply with certain covenants contained in
the Indenture relating to such Debt Securities, will continue to be obligated in
all other respects under such Debt Securities and will continue to be
contingently liable with respect to the payment of principal, interest, if any,
and premium, if any, with respect to such Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement and
except as described below, the conditions to both defeasance and covenant
defeasance are as follows: (i) such defeasance or covenant defeasance must not
result in a breach or violation of, or constitute a Default or Event of Default
under, the applicable Indenture; (ii) certain bankruptcy related Defaults or
Events of Default with respect to Continental must not have occurred and be
continuing during the period commencing on the date of the deposit of the trust
funds to defease such Debt Securities and ending on the 91st day after such
date; (iii) Continental must deliver to the Trustee an Opinion of Counsel to the
effect that the holders of such Debt Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to Federal income tax on the same
amounts and in the same manner and at all the same times as would have been the
case if such defeasance or covenant defeasance had not occurred (such Opinion of
Counsel, in the case of defeasance, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable Federal income tax law
occurring after the date of the Indentures); and (iv) any additional conditions
to such defeasance or covenant defeasance which may be imposed on Continental
pursuant to the applicable Indenture. The Indentures require that a nationally
recognized firm of independent public accountants deliver to the Trustee a
written certification as to the sufficiency of the trust funds deposited for the
defeasance or covenant defeasance of such Debt Securities. The Indentures do not
<PAGE>
provide the holders of such Debt Securities with recourse against such firm. If
indicated in the applicable Prospectus Supplement, in addition to obligations of
the United States or an agency or instrumentality thereof, Government
Obligations may include obligations of the government or any agency or
instrumentality of the government issuing the currency in which Debt Securities
of such series are payable. In the event that Government Obligations deposited
with the Trustee for the defeasance of such Debt Securities decrease in value or
default subsequent to their being deposited, Continental will have no further
obligation, and the holders of such Debt Securities will have no additional
recourse against Continental, as a result of such decrease in value or default.
As described above, in the event of a covenant defeasance, Continental remains
contingently liable with respect to the payment of principal, interest, if any,
and premium, if any, with respect to the Debt Securities.
Continental may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance option.
If Continental exercises its defeasance option, payment of such Debt Securities
may not be accelerated because of a Default or an Event of Default. If
Continental exercises its covenant defeasance option, payment of such Debt
Securities may not be accelerated by reason of a Default or an Event of Default
with respect to the covenants to which such covenant defeasance is applicable.
However, if such acceleration were to occur, the realizable value at the
acceleration date of the money and Government Obligations in the defeasance
trust could be less than the principal and interest, if any, then due on such
Debt Securities, in that the required deposit in the defeasance trust is based
upon scheduled cash flow rather than market value, which will vary depending
upon interest rates and other factors.
The applicable Prospectus Supplement may further describe the provisions,
if any, applicable to defeasance or covenant defeasance with respect to Debt
Securities of a particular series.
THE TRUSTEE
The applicable Prospectus Supplement relating to each series of Debt
Securities will identify the Trustee under the Indenture relating to such Debt
Securities. If more than one series of Debt Securities is outstanding under an
Indenture, a Trustee may serve in such capacity with respect to the Debt
Securities of one or more of such series. If more than one series of Debt
Securities is outstanding under an Indenture, the holders of a majority in
aggregate principal amount of each such series at any time outstanding may
remove the Trustee with respect to such series (but not as to any other series)
by so notifying the Trustee and may appoint a successor Trustee with respect to
such series. Each reference in this Prospectus to the Trustee under an Indenture
refers, in the case of each series of Debt Securities outstanding under such
Indenture, to the Trustee for such series.
PLAN OF DISTRIBUTION
Continental may sell Debt Securities in or outside of the United States to
one or more underwriters for public offering and sale by them or may sell Debt
Securities to investors or other persons directly or through one or more dealers
or agents. Any such underwriter, dealer or agent involved in the offer and sale
of the Offered Securities will be named in an applicable Prospectus Supplement.
<PAGE>
The Offered Securities may be sold at a fixed price or prices, which may be
changed, or from time to time at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices.
Dealer trading may take place in certain of the Offered Securities, including
Offered Securities not listed on any securities exchange. Continental also may,
from time to time, authorize underwriters acting as Continental's agents to
offer and sell the Offered Securities upon the terms and conditions as shall be
set forth in any Prospectus Supplement. In connection with the sale of Offered
Securities, underwriters may be deemed to have received compensation from
Continental in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Offered Securities for whom they may act
as agent. Underwriters may sell Offered Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions (which may be changed from
time to time) from the purchasers for whom they may act as agent.
If a dealer is used directly by Continental in the sale of Offered
Securities in respect of which this Prospectus is delivered, Continental will
sell such Offered Securities to the dealer, as principal. The dealer may then
resell such Offered Securities to the public at varying prices to be determined
by such dealer at the time of resale. Any such dealer and the terms of any such
sale will be set forth in the Prospectus Supplement relating thereto.
Offered Securities may be offered and sold through agents designated by
Continental from time to time. Any such agent involved in the offer or sale of
the Offered Securities in respect of which this Prospectus is delivered will be
named in, and any commissions payable by Continental to such agent will be set
forth in, the applicable Prospectus Supplement. Unless otherwise indicated in
the applicable Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
Offers to purchase Offered Securities may be solicited directly by
Continental and sales thereof may be made by Continental directly to
institutional investors or others who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the Prospectus Supplement relating
thereto. Except as set forth in the applicable Prospectus Supplement, no
director, officer or employee of Continental will solicit or receive a
commission in connection with direct sales by Continental of the Offered
Securities, although such persons may respond to inquiries by potential
purchasers and perform ministerial and clerical work in connection with any such
direct sales.
Any underwriting compensation paid by Continental to underwriters, dealers
or agents in connection with the offering of Offered Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in an applicable Prospectus Supplement. Underwriters,
<PAGE>
dealers and agents participating in the distribution of the Offered Securities
may be deemed to be underwriters, and any discounts and commissions received by
them and any profit realized by them on resale of the Offered Securities may be
deemed to be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements with
Continental, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act, and to
reimbursement by Continental for certain expenses.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, Continental and its subsidiaries in the ordinary course of
business.
If so indicated in an applicable Prospectus Supplement and subject to
existing market conditions, Continental will authorize dealers acting as
Continental's agents to solicit offers by certain institutions to purchase
Offered Securities from Continental at the public offering price set forth in
such Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date or dates stated in such
Prospectus Supplement. Each Contract will be for an amount not less than, and
the aggregate principal amount of Offered Securities sold pursuant to Contracts
shall not be less nor more than, the respective amounts stated in such
Prospectus Supplement. Institutions with whom Contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of Continental.
Contracts will not be subject to any conditions except the purchase by an
institution of the Offered Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject. A commission indicated in the
applicable Prospectus Supplement will be granted to underwriters and agents
soliciting purchases of Offered Securities pursuant to Contracts accepted by
Continental. Agents and underwriters will have no responsibility in respect of
the delivery or performance of Contracts.
The Offered Securities may or may not be listed on a national securities
exchange or a foreign securities exchange. If an underwriter or underwriters are
utilized in the sale of any Offered Securities, the applicable Prospectus
Supplement will contain a statement as to the intention, if any, of such
underwriters at the date of such Prospectus Supplement to make a market in the
Offered Securities. No assurances can be given that there will be a market for
the Offered Securities.
The place and time of delivery for the Offered Securities in respect of
which this Prospectus is delivered will be set forth in the applicable
Prospectus Supplement.
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Debt Securities offered hereby will be passed upon for
Continental by Hughes Hubbard & Reed LLP, New York, New York.
<PAGE>
EXPERTS
The consolidated financial statements (including financial statement
schedules) of Continental Airlines, Inc. appearing in Continental Airlines,
Inc.'s Annual Report (Form 10-K) for the year ended December 31, 1996 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon included therein and incorporated herein by reference. Such
consolidated financial statements are, and audited consolidated financial
statements to be included in subsequently filed documents will be, incorporated
herein by reference in reliance upon the reports of Ernst & Young LLP pertaining
to such consolidated financial statements (to the extent covered by consents
filed with the Commission) given upon the authority of such firm as experts in
accounting and auditing.
---------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY RELATED PROSPECTUS
SUPPLEMENT AND/OR PRICING SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED IN
THIS PROSPECTUS AND SUCH PROSPECTUS SUPPLEMENT AND/OR PRICING SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY CONTINENTAL OR ANY UNDERWRITERS, AGENTS OR DEALERS.
THIS PROSPECTUS AND ANY RELATED PROSPECTUS SUPPLEMENT AND/OR PRICING SUPPLEMENT
DO NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY SECURITIES
IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS AND ANY RELATED PROSPECTUS
SUPPLEMENT AND/OR PRICING SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF CONTINENTAL SINCE THE DATE HEREOF OR THEREOF OR THAT
THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO
THE DATE HEREOF OR THEREOF.
---------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
Available Information ........................................................2
Incorporation of Certain Documents by Reference ..............................2
The Company ..................................................................4
Use of Proceeds ..............................................................4
Ratio of Earnings to Fixed Charges ...........................................4
Description of Debt Securities ...............................................5
Plan of Distribution .........................................................16
Legal Opinions ...............................................................18
Experts ......................................................................19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this offering, other than
underwriting discounts and commissions, are:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration filing fee.......... $121,213
Printing and engraving expenses..................................... 20,000*
Trustee fees and expenses........................................... 15,000*
Accounting fees and expenses........................................ 15,000*
Rating Agency fees.................................................. 30,000*
Legal fees and expenses............................................. 50,000*
Miscellaneous....................................................... 23,787*
--------
Total...................................................... 275,000*
========
<FN>
-----------------
* Estimates.
</FN>
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation and Bylaws provide that the
Company will indemnify each of its directors and officers to the full extent
permitted by the laws of the State of Delaware and may indemnify certain other
persons as authorized by the Delaware General Corporation Law (the "GCL").
Section 145 of the GCL provides as follows:
"(a) A corporation shall have power 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 (other than an action by or in the right of
the corporation) 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, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
<PAGE>
(b) A corporation shall have power 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 or suit by or in the right of the corporation to
procure a judgment in its favor 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) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b). Such determination shall be made (1) by a majority
vote of the board of directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
<PAGE>
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who 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
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent for such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees)".
<PAGE>
The Certificate of Incorporation and Bylaws also limit the personal
liability of directors to the Company and its stockholders for monetary damages
resulting from certain breaches of the directors' fiduciary duties. The Bylaws
of the Company provide as follows:
"No Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability (i) for any breach of
the Director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
GCL, or (iv) for any transaction from which the Director derived any
improper personal benefit. If the GCL is amended to authorize corporate
action further eliminating or limiting the personal liability of Directors,
then the liability of Directors of the Corporation shall be eliminated or
limited to the full extent permitted by the GCL, as so amended".
The Company maintains directors' and officers' liability insurance.
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index which immediately precedes the
exhibits filed with this Registration Statement, which is incorporated herein by
reference.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section l0(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
<PAGE>
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) shall 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 section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 any 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 of whether or not
such indemnification is against public policy as expressed in the Securities Act
of 1933 and will be governed by the final adjudication of such issue.
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, as amended (the "TIA"), in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the TIA.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Houston, State of Texas, on June 13, 1997.
CONTINENTAL AIRLINES, INC.
By: /S/ JEFFERY A. SMISEK
----------------------------------
Jeffery A. Smisek
Executive Vice President, General
Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated, on June 13, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
* Chairman of the Board and Chief Executive Officer (Principal Executive
- ----------------------- Officer) and Director
Gordon M. Bethune
* Executive Vice President and Chief Financial Officer
- ----------------------- (Principal Financial Officer)
Lawrence W. Kellner
* Vice President and Controller
- ----------------------- (Principal Accounting Officer)
Michael P. Bonds
* Director
- -----------------------
Thomas J. Barrack, Jr.
* President, Chief Operating Officer and Director
- -----------------------
Gregory D. Brenneman
* Director
- -----------------------
Lloyd M. Bentsen, Jr.
* Director
- -----------------------
David Bonderman
Director
- -----------------------
Patrick Foley
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
* Director
- -----------------------
Douglas H. McCorkindale
* Director
- -----------------------
George G. C. Parker
* Director
- -----------------------
Richard W. Pogue
* Director
- -----------------------
William S. Price III
* Director
- -----------------------
Donald L. Sturm
* Director
- -----------------------
Karen Hastie Williams
* Director
- -----------------------
Charles A. Yamarone
*By: /S/ SCOTT R. PETERSON
-----------------------------------
Scott R. Peterson, Attorney-in-fact
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
----------- -------
<S> <C>
4.1 Form of Senior Indenture
4.2 Form of Subordinated Indenture
5.1 Opinion of Hughes Hubbard & Reed LLP
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hughes Hubbard & Reed LLP (included in
its opinion filed as Exhibit 5.1)
24.1 Powers of Attorney
</TABLE>
EXHIBIT 4.1
FORM OF SENIOR INDENTURE
<PAGE>
CONTINENTAL AIRLINES, INC., Issuer
to
[__________________________________________], Trustee
INDENTURE
Dated as of June __, 1997
Providing for Issuance of
Senior Debt Securities in Series
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......1
1.1 Definitions..................................................1
1.2 Compliance Certificates and Opinions.........................9
1.3 Form of Documents Delivered to Trustee......................10
1.4 Acts of Holders.............................................11
1.5 Notices, etc., to Trustee and Company.......................12
1.6 Notice to Holders; Waiver...................................13
1.7 Headings and Table of Contents..............................14
1.8 Successors and Assigns......................................14
1.9 Separability................................................14
1.10 Benefits of Indenture.......................................14
1.11 Governing Law...............................................14
1.12 Legal Holidays..............................................14
1.13 Trustee to Establish Record Dates...........................15
1.14 No Security Interest Created................................15
1.15 Liability Solely Corporate..................................15
ARTICLE 2 SECURITY FORMS..............................................15
2.1 Forms Generally.............................................15
2.2 Form of Trustee's Certificate of Authentication.............16
2.3 Securities in Global Form...................................16
ARTICLE 3 THE SECURITIES..............................................17
3.1 Amount Unlimited; Issuable in Series........................17
3.2 Denominations...............................................21
3.3 Execution, Authentication, Delivery and Dating..............21
3.4 Temporary Securities........................................25
3.5 Registration, Registration of Transfer and Exchange.........26
3.6 Replacement Securities......................................30
3.7 Payment of Interest; Interest Rights Preserved..............31
3.8 Persons Deemed Owners.......................................33
3.9 Cancellation................................................33
3.10 Computation of Interest.....................................34
3.11 Currency and Manner of Payment in Respect of Securities.....34
3.12 Appointment and Resignation of Exchange Rate Agent..........38
3.13 CUSIP Numbers...............................................39
3.14 Judgments...................................................39
ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE......................40
4.1 Termination of Company's Obligations Under the Indenture....40
4.2 Application of Trust Funds..................................41
4.3 Applicability of Defeasance Provisions; Company
Option to Effect Defeasance or Covenant Defeasance..........41
4.4 Defeasance and Discharge....................................42
4.5 Covenant Defeasance.........................................42
4.6 Conditions to Defeasance or Covenant Defeasance.............43
4.7 Deposited Money and Government Obligations To Be Held in
Trust.......................................................44
4.8 Transfers and Distribution at Company Request...............45
4.9 Reinstatement...............................................46
ARTICLE 5 DEFAULTS AND REMEDIES.......................................46
5.1 Events of Default...........................................46
5.2 Acceleration; Rescission and Annulment......................47
5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................48
5.4 Trustee May File Proofs of Claim............................49
5.5 Trustee May Enforce Claims Without Possession of Securities.49
5.6 Delay or Omission Not Waiver................................50
5.7 Waiver of Past Defaults.....................................50
5.8 Control by Majority.........................................50
5.9 Limitation on Suits by Holders..............................50
5.10 Rights of Holders to Receive Payment........................51
5.11 Application of Money Collected..............................51
5.12 Restoration of Rights and Remedies..........................52
5.13 Rights and Remedies Cumulative..............................52
5.14 Undertaking for Costs.......................................52
5.15 Waiver of Stay or Extension Laws............................52
ARTICLE 6 THE TRUSTEE.................................................53
6.1 Certain Duties and Responsibilities.........................53
6.2 Rights of Trustee...........................................53
6.3 Trustee May Hold Securities.................................54
6.4 Money Held in Trust.........................................54
6.5 Trustee's Disclaimer........................................54
6.6 Notice of Defaults..........................................54
6.7 Reports by Trustee to Holders...............................55
6.8 Securityholder Lists........................................55
6.9 Compensation and Indemnity..................................55
6.10 Replacement of Trustee......................................56
6.11 Acceptance of Appointment by Successor......................57
6.12 Eligibility; Disqualification...............................59
6.13 Merger, Conversion, Consolidation or Succession to Business.59
6.14 Appointment of Authenticating Agent.........................59
6.15 Trustee's Application for Instructions from the Company.....61
6.16 Preferential Collection of Claims Against Company...........61
ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY................61
7.1 Consolidation, Merger or Sale of Assets by the Company
Permitted...................................................61
7.2 Successor Corporation Substituted...........................62
ARTICLE 8 SUPPLEMENTAL INDENTURES.....................................62
8.1 Supplemental Indentures without Consent of Holders..........62
8.2 Supplemental Indentures with Consent of Holders.............64
8.3 Compliance with Trust Indenture Act.........................65
8.4 Execution of Supplemental Indentures........................65
8.5 Effect of Supplemental Indentures...........................65
8.6 Reference in Securities to Supplemental Indentures..........65
8.7 Notice of Supplemental Indenture............................65
ARTICLE 9 COVENANTS...................................................65
9.1 Payment of Principal, Premium, if Any, and Interest,
if Any......................................................65
9.2 Maintenance of Office or Agency.............................66
9.3 Money for Securities to Be Held in Trust; Unclaimed Money...67
9.4 Corporate Existence.........................................68
9.5 Reports by the Company......................................68
9.6 Annual Review Certificate; Notice of Default................69
9.7 Waiver of Certain Covenants and Conditions..................69
ARTICLE 10 REDEMPTION..................................................69
10.1 Applicability of Article....................................69
10.2 Election to Redeem; Notice to Trustee.......................70
10.3 Selection of Securities To Be Redeemed......................70
10.4 Notice of Redemption........................................70
10.5 Deposit of Redemption Price.................................71
10.6 Securities Payable on Redemption Date.......................72
10.7 Securities Redeemed in Part.................................73
ARTICLE 11 SINKING FUNDS...............................................73
11.1 Applicability of Article....................................73
11.2 Satisfaction of Sinking Fund Payments with Securities.......73
11.3 Redemption of Securities for Sinking Fund...................74
SIGNATURES ............................................................75
<PAGE>
Reconciliation and tie between Indenture, dated as of June __, 1997, and the
Trust Indenture Act of 1939, as amended.
TRUST INDENTURE ACT
OF 1939 SECTION INDENTURE SECTION
- ------------------- -----------------
310(a)(1) 6.12
(a)(2) 6.12
(a)(3) TIA
(a)(4) Not Applicable
(a)(5) TIA
(b) 6.10; 6.12; TIA
311(a) TIA
(b) TIA
(c) Not Applicable
312(a) 6.8
(b) TIA
(c) TIA
313(a) 6.7; TIA
(b) TIA
(c) TIA
(d) TIA
314(a) 9.6; 9.7; TIA
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) TIA
315(a) TIA
(b) 6.6
(c) TIA
(d)(1) TIA
(d)(2) TIA
(d)(3) TIA
(e) TIA
<PAGE>
316(a) (last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
(c) TIA
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(b) TIA
(c) 1.11; TIA
- ----------------------------------
This reconciliation and tie section does not constitute part of the Indenture.
<PAGE>
INDENTURE, dated as of June __, 1997, among CONTINENTAL AIRLINES,
INC., a Delaware corporation (the "Company"), as issuer and
[____________________], a [ ], as Trustee (the "Trustee").
RECITALS
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 ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or
series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. DEFINITIONS.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"AFFILIATE" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
<PAGE>
control with, such specified Person. For 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" means any Paying Agent or Registrar.
"AUTHENTICATING AGENT" means any authenticating agent appointed by
the Trustee pursuant to Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
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. Whenever successive publications in an Authorized Newspaper are required
hereunder they may be made (unless otherwise expressly provided herein) on any
Business Day and in the same or different Authorized Newspapers.
"BEARER SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is payable to
bearer (including any Security in global form payable to bearer) and title to
which passes by delivery only, but does not include any coupons.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company, the Executive Committee of the Company or any other duly authorized
committee of such Board of Directors.
"BOARD RESOLUTION" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"CAPITAL LEASE" means any lease obligation of a person incurred with
respect to real property or equipment acquired or leased by such person and used
in its business that is required to be recorded on its balance sheet as a
capitalized lease in accordance with generally accepted accounting principles
consistently applied.
"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 Indenture such
<PAGE>
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 one or more successor corporations shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter means such successor or successors.
"COMPANY ORDER" and "COMPANY REQUEST" mean, respectively, a written
order or request signed in the name of the Company by the Chairman of the Board,
the President, any Executive Vice President, any Senior Vice President or any
Vice President, signing alone, or, with respect to Sections 3.3, 3.4, 3.5 and
6.1, any other employee of the Company named in an Officer's Certificate
delivered to the Trustee.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit other than the ECU for the purposes for which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
[____________________].
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"DEPOSITARY", when used with respect to the Securities of or within
any series issuable or issued in whole or in part in global form, means the
Person designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"DOLLAR" and the sign "$" mean the coin or currency of the United
States which at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"EUROPEAN COMMUNITIES" means European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
<PAGE>
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EXCHANGE RATE AGENT", when used with respect to Securities of or
within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, a New York Clearing House bank designated
pursuant to Section 3.1 or Section 3.12.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (of an aggregate basis and on the basis of a Security
having the lowest denomination principal amount in the relevant currency or
currency unit), payable with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation, signed by the
Treasurer, any Executive Vice President, any Senior Vice President, any Vice
President or any Assistant Treasurer of the Company.
"FOREIGN CURRENCY" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States or such other government, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depositary receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depositary
receipt.
"HOLDER" means, with respect to a Bearer Security or coupon, a bearer
thereof and, with respect to a Registered Security, a person in whose name a
Security is registered on the Register.
"INDENTURE" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms (but not
defined terms established by or pursuant to a Board Resolution) of particular
series of Securities established as contemplated by Sections 2.1 and 3.1.
<PAGE>
"INDEXED SECURITY" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City, London or other principal market for such currency or currency unit in
question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"MATURITY" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, the President, any
Executive Vice President, any Senior Vice President, any Vice President, the
Treasurer or Secretary of the Company.
<PAGE>
"OFFICER'S CERTIFICATE" means a certificate signed by an Officer of
the Company signing alone, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of legal counsel, who
may be (a) an attorney employed by the Company, (b) Hughes Hubbard & Reed LLP or
(c) other counsel designated by the Company and who shall be acceptable to the
Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"OUTSTANDING" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5., with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
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
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
<PAGE>
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of the Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (w) above) of such Security, (y) the principal amount of any
Indexed Security that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 3.1 and (z)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"PAYING AGENT" means any person authorized by the Company to pay the
principal of, premium, if any, or interest, if any, on any Securities on behalf
of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by
Section 3.1 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of or
within any series, means the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest, if any, on such
Securities are payable as specified as contemplated by Section 3.1.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
<PAGE>
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered as
to principal and interest in the Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, shall
mean any vice president, assistant vice president, any senior trust officer, or
any trust officer, in the Corporate Trust Office of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
and also means, with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such corporate trust matter is referred because
of his knowledge of and familiarity with the particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
the Registered Securities of any issue means a date fixed by the Trustee
pursuant to Section 3.7.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"SUBSIDIARY" means any corporation of which the Company at the time
owns or controls, directly or indirectly, more than 50% of the shares of
outstanding stock having general voting power under ordinary circumstances to
elect a majority of the Board of Directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in effect on the date of this Indenture, except as provided in
Section 8.3.
"TRUSTEE" means the party named as such in the first paragraph of
this Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
<PAGE>
"UNITED STATES" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. PERSON" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
"YIELD TO MATURITY" means the yield to maturity, calculated by the
Company at the time of issuance of a series of Securities or, if applicable, at
the most recent determination of interest on such series, in accordance with
accepted financial practice.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
<TABLE>
<CAPTION>
TERM SECTION
- ---- -------
<S> <C>
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.11(h)
"Conversion Date" 3.11(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Dollar Equivalent of the Foreign Currency" 3.11(f)
"Dollar Equivalent of the Currency Unit" 3.11(g)
"Election Date" 3.11(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Specified Amount" 3.11(h)
"Valuation Date" 3.11(c)
</TABLE>
Section 1.2. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
<PAGE>
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3, 3.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made or caused to be made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion 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 as to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
<PAGE>
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in clause (b) of this Section 1.4.
Whenever any action or Act is to be taken hereunder by the Holders of Securities
denominated in different currencies or currency units, then for purposes of
determining the principal amount of Securities held by such Holders, the
aggregate principal amount of the Securities denominated in a foreign currency
or currency unit shall be deemed to be the Dollar equivalent amounts thereof
determined by the Company on the basis of the applicable Market Exchange Rates
in effect as of the date of the taking of such action or Act by the Holders of
the requisite percentage in principal amount of the Securities (the "Action
Date"), except that if a Conversion Event has occurred with respect to a foreign
currency or currency unit and is continuing, the Dollar equivalent amounts of
Securities denominated in such foreign currency or currency unit shall be
determined on the basis of the Dollar Equivalent of the Foreign Currency or the
Dollar Equivalent of the Currency Unit (computed in accordance with Sections
3.11(f) and (g), except that for purposes of computing the Dollar Equivalent of
the Currency Unit, references to the "Valuation Date" shall be deemed to refer
to the date of the taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities).
(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 reasonable manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any bearer Security
continues until (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other reasonable manner which the Trustee deems
sufficient.
<PAGE>
(d) The ownership of Registered Securities shall be proved by the
Register or by a certificate of the Registrar.
(e) 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.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to an Officer's Certificate delivered to the
Trustee, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; PROVIDED, that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of clause (a) of
this Section 1.4 no later than six months after the record date.
(g) At any time prior to (but not after) the evidencing to the
Trustee, as provided in clause (a) of this Section 1.4, of the taking of any Act
by the Holders of the percentage in aggregate principal amount of the
Outstanding Securities specified in this Indenture in connection with such Act,
any Holder of a Security, the number, letter or other distinguishing symbol of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such Act, may, by filing written notice with the Trustee
at the Corporate Trust Office and upon proof of ownership as provided in this
Section 1.4, revoke such Holder's consent to such Act so far as it concerns such
Security.
(h) The Trustee may in any instance require further proof with respect
to any of the matters referred to in this Section 1.4 so long as this request is
a reasonable one.
Section 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(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: [____________], or
<PAGE>
(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 2929 Allen Parkway, Suite
2010, Houston, Texas 77019, Attention: Chief Executive Officer and
General Counsel or at any other address furnished in writing to the
Trustee by the Company prior to the mailing thereof.
Section 1.6. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein expressly provided or otherwise
agreed to by a Holder) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Register, within the time prescribed for the giving of such notice and (ii) if
any of the Securities affected by such event are Bearer Securities, notice to
the Holders thereof shall be sufficiently given (unless otherwise herein or in
the terms of such Bearer Securities expressly provided) if published once in an
Authorized Newspaper in New York, New York, and in such other city or cities, if
any, as may be specified as contemplated by Section 3.1(5).
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
<PAGE>
Section 1.7. HEADINGS AND TABLE OF CONTENTS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.9. SEPARABILITY. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.10. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto, any Registrar, any Paying Agent and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.11. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture is subject to the Trust
Indenture Act and if any provision hereof limits, qualifies or conflicts with
the duties imposed on any person by the provision of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 1.12. LEGAL HOLIDAYS. Unless otherwise specified pursuant to
Section 3.1 or in any Security, in any case where any Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of principal,
premium, if any, or interest need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such date; PROVIDED that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be, to such Business Day if such payment
is made or duly provided for on such Business Day.
Section 1.13. TRUSTEE TO ESTABLISH RECORD DATES. The Trustee shall fix
a record date for the purpose of determining the Holders entitled to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date and
only such Holders, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action shall be valid
or effective if made, given or taken more than 90 days after such record date.
<PAGE>
Section 1.14. NO SECURITY INTEREST CREATED. Nothing in this Indenture
or in the Securities or coupons, if any, express or implied, shall be construed
to constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect in any jurisdiction where
property of the Company or its Subsidiaries is or may be located.
Section 1.15. LIABILITY SOLELY CORPORATE. No recourse shall be had for
the payment of the principal of (or premium, if any) or the interest on any
Securities or coupons, if any, or any part thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company (or any incorporator,
stockholder, officer or director of any predecessor or successor corporation),
either directly or through the Company (or any such predecessor or successor
corporation), whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Securities and coupons, if
any, are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator, stockholder, officer
or director, past, present or future, of the Company (or any incorporator,
stockholder, officer or director of any such predecessor or successor
corporation), either directly or indirectly through the Company or any such
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Securities or
coupons, if any, or to be implied herefrom or therefrom; and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issue of Securities; PROVIDED, HOWEVER, that nothing herein or in the Securities
or coupons, if any, contained shall be taken to prevent recourse to and the
enforcement of the liability, if any, of any stockholder or subscriber to
capital stock upon or in respect of the shares of capital stock not fully paid.
ARTICLE 2
SECURITY FORMS
Section 2.1. FORMS GENERALLY. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form
(including global form) as shall be established by or pursuant to authority
granted in 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 and coupons, if any, as evidenced by their
execution of the Securities and coupons, if any. If temporary Securities of any
series are issued as permitted by Section 3.4, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by or pursuant to a Board
Resolution, such Board Resolution (and, if applicable, an Officer's Certificate
certifying the action taken pursuant to such Board Resolution) shall be
<PAGE>
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the officers executing
such Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
Section 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated: [___________________________], as Trustee
By_______________________________________
Authorized Signatory
Section 2.3. SECURITIES IN GLOBAL FORM. If Securities of or within a
series are issuable in whole or in part in temporary or definitive global form,
as specified as contemplated by Section 3.1, then, notwithstanding clause (8) of
Section 3.1(b) and the provisions of Section 3.2, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall
deliver and redeliver any Security in global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 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 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest, if any, on any Security in definitive global form
shall be made to the Person or Persons specified therein.
<PAGE>
ARTICLE 3
THE SECURITIES
Section 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
(b) The following matters shall be established and (subject to Section
3.3) set forth, or determined in the manner provided, in a Board Resolution,
and, in the case of matters established or determined pursuant to a Board
Resolution, set forth in an Officer's Certificate certifying the action taken
pursuant to such Board Resolution, or one or more indentures supplemental
hereto:
(1) the title of the Securities of the series (which title 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 (which limit shall not pertain to (i) Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 8.6 or 10.7 and (ii) any Securities which,
pursuant to the last paragraph of Section 3.3, are deemed never to
have been authenticated and delivered hereunder);
(3) the date or dates on which or periods during which the
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and
premium, if any, on) the Securities of such series are or may be
payable (which, if so provided in such Board Resolution or
supplemental indenture, may be determined by the Company from time to
time and set forth in the Securities of the series issued from time to
time);
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates
of interest, the date or dates from which such interest shall accrue
(which, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Securities of the series issued from time to time) or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable (or the
method of determination thereof) and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date;
<PAGE>
(5) the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest, if any,
on Securities of the series shall be payable; the extent to which, or
the manner in which, any interest payable on any Security in global
form on an Interest Payment Date will be paid, if other than in the
manner provided in Section 3.7; and the manner in which any principal
of, or premium, if any, on, any Security in global form will be paid,
if other than as set forth elsewhere herein;
(6) the period or periods within which, or the date or dates on
which, the price or prices at which, the currency or currencies
(including currency units) in which, and the other terms and
conditions upon which, Securities of the series may be redeemed, in
whole or in part, at the option of the Company and, if other than as
provided in Section 10.3, the manner in which the particular
Securities of such series (if less than all Securities of such series
are to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price
or prices at which, and the other terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000, if Bearer Securities, the denominations in
which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or
in which the Securities of the series shall be denominated, the
particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.11, and whether
the Securities of the series may be satisfied and discharged other
than as provided in Article 4;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency units) other than that in which such Securities
are denominated or designated to be payable, the currency or
currencies (including currency units) in which such payments are to be
made, the terms and conditions of such payments and the manner in
which the exchange rate with respect to such payments shall be
determined, the particular provisions applicable thereto in accordance
with, in addition to, or in lieu of the provisions of Section 3.11,
and whether the Securities of the series may be satisfied and
discharged other than as provided in Article 4;
<PAGE>
(11) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency units) other than that in
which the Securities of the series are denominated or designated to be
payable), the index, formula or other method by which such amounts
shall be determined;
(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion shall be
determined;
(13) if other than as provided in Section 3,7, the Person to whom
any interest on any Registered Security of the series shall be
payable, the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable, and the extent
to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or definitive global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 2.3 and Section 3.4, as applicable;
(14) provisions, if any, granting special rights to Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article 9 pertaining to the Securities of the series;
(16) the circumstances, if any, under which the Company will pay
additional amounts on the Securities of that series held by a Person
who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale or delivery of Bearer Securities and, if other than as provided
in Section 3.5, the terms upon which Bearer Securities of a series may
be exchanged for Registered Securities of the same series and vice
versa;
(18) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(19) the applicability, if any, to the Securities of or within
the series of Sections 4.4 and 4.5, or such other means of defeasance
or covenant defeasance as may be specified for the Securities and
<PAGE>
coupons, if any, of such series, and whether, for the purpose of such
defeasance or covenant defeasance, the term "Government Obligations"
shall include obligations referred to in the definition of such term
which are not obligations of the United States or an agency or
instrumentality of the United States;
(20) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(21) the designation of the initial Exchange Rate Agent, if any;
(22) whether Securities of the series shall be issued in whole or
in part in temporary or definitive global form and, if so, (i) the
initial Depositary for such global Securities (which Depositary shall
have the qualifications set forth in Section 3.3) and (ii) if other
than as provided in Section 3.4 or 3.5, as applicable, whether and the
circumstances under which beneficial owners of interests in any
Securities of the series in temporary or definitive global form may
exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Security in
global form (representing all of the Outstanding Bearer Securities of
the series) payable in respect of any Interest Payment Date prior to
the exchange of such temporary Security for definitive Securities of
the series shall be paid to any clearing organization with respect to
the portion of such temporary Security held for its account and, in
such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date, and (y) the terms upon
which interests in such temporary Security in global form may be
exchanged for interests in a definitive Security in global form or for
definitive Securities of the series and the terms upon which interests
in a definitive Security in global form, if any, may be exchanged for
definitive Securities of the series; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including any
terms which may be required by or advisable under United States laws
or regulations or advisable in connection with the marketing of
Securities of the series.
(c) All Securities of any one series and coupons, if any, appertaining
to any Bearer Securities of such series shall be substantially identical except
as to denomination, the terms of redemption and the rate or rates of interest
(or method of determining the rate of interest), if any, and Stated Maturity,
the date from which interest, if any, shall accrue and except as may otherwise
be provided, or determined pursuant to the authority granted, in a Board
Resolution pursuant to this Section 3.1 or in an indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such series.
<PAGE>
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officer's Certificate of the Company, setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof. With respect to Securities of a series
subject to a Periodic Offering, such Board Resolutions and Officer's
Certificates may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order, or that such terms shall be determined by the
Company, or one or more of its agents, designated in its Officer's Certificate
or Board Resolution, in accordance with the Company Order, as contemplated by
the first proviso of the third paragraph of Section 3.3.
Section 3.2. DENOMINATIONS. Unless otherwise provided as contemplated
by Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in denominations of $5,000.
Section 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its Chairman of the
Board or President and attested to by its Secretary or one of its Assistant
Secretaries. The Company's seal shall be affixed to the Securities, or a
facsimile of such seal shall be engraved, printed, or otherwise reproduced on
the Securities. The signatures of such officers on the Securities may be manual
or facsimile. The coupons, if any, of Bearer Securities shall bear the facsimile
signature of the Chairman of the Board or President and shall be attested by the
Secretary of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time 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, the Company may deliver Securities,
together with any coupons appertaining thereto, of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; PROVIDED,
HOWEVER, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of such
series; PROVIDED, FURTHER, that, in connection with its sale during the
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States. If any Security shall be
represented by a definitive Security in global form, then, for purposes of this
<PAGE>
Section and Section 3.4, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary Security in global form shall be deemed to be delivery in connection
with the original issuance of such beneficial owner's interest in such
definitive Security in global form. Except as permitted by Section 3.6 or 3.7,
the Trustee shall not authenticate and deliver any Bearer Security unless all
coupons for interest then matured have been detached and cancelled.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or Officer's
Certificates as permitted by Sections 2.1 and 3.1, in authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 315(a) through (d) of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities and
coupons conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and
deliver such Securities and coupons;
(2) that the forms and terms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(3) the execution and delivery of such Securities and coupons
have been duly authorized by all necessary corporate action of the
Company and such Securities and coupons have been duly executed by the
Company, and that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject
to other customary exceptions;
(4) in the event that the forms or terms of such Securities and
coupons have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such
supplemental indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
Trustee, is a valid and binding obligation enforceable against the
Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and subject to other customary exceptions; and
<PAGE>
(5) the amount of Securities Outstanding of such series, together with the
amount of such Securities, does not exceed any limit established under
the terms of this Indenture on the amount of Securities of such series
that may be authenticated and delivered;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of
such Securities (when established by or in accordance with such
procedures as may be specified from time to time in a Company Order,
all as contemplated by and in accordance with a Board Resolution or an
Officer's Certificate pursuant to Section 3.1, as the case may be)
will have been, established in conformity with the provisions of this
Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and subject to other customary exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officer's Certificates as permitted by
Sections 2.1 and 3.1, the Trustee shall have the right to decline to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will adversely affect the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee. Notwithstanding the generality of the foregoing, the Trustee
will not be required to authenticate Securities denominated in a Foreign
<PAGE>
Currency if the Trustee reasonably believes that it would be unable to perform
its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.1 at or prior to the time
of the authentication of each Security of such series if such Officer's
Certificate is delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instruction.
Each Depositary designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so registered.
Each Depositary shall enter into an agreement with the Trustee governing the
respective duties and rights of such Depositary and the Trustee with regard to
Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security (including a Bearer Security represented
by a temporary global Security) shall be dated as of the date specified as
contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
such Security is authenticated by the manual signature of one of the authorized
signatories of the Trustee or an Authenticating Agent. Such signature upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered under this Indenture and is entitled
to the benefits of this Indenture. Except as permitted by Section 3.6 or 3.7,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
<PAGE>
Section 3.4. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in a global form.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of such definitive Securities, the temporary Securities shall be
exchangeable for such definitive Securities of like tenor upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; PROVIDED, HOWEVER, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and PROVIDED, FURTHER that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in the Board Resolution or Officer's Certificate relating thereto and
such deliver shall occur only outside the United States. 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 except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. (a)
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency to be maintained by the Company in accordance with
Section 9.2 in a Place of Payment a register (the "Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and the registration of transfers
of Registered Securities. The Register shall be in written form or any other
form capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
<PAGE>
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 Registered Securities of the same series, of any
authorized denominations, of a like aggregate principal amount and tenor and
with like terms and conditions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
(b) Unless otherwise specified as contemplated by Section 3.1, to the
extent permitted by law, at the option of the Holder, Bearer Securities of a
series may be exchanged for Registered Securities (if the Securities of such
series are issuable in registered form) or Bearer Securities (if Bearer
Securities of such series are issuable in more than one denomination and such
changes are permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 9.2,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case any Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
<PAGE>
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture. The Company shall
execute, and the Trustee shall authenticate and deliver, the Registered Security
or Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Securities in effect at the time of such
exchange.
(c) Except as otherwise specified pursuant to Section 3.1, in no event
may Registered Securities, including Registered Securities received in exchange
for Bearer Securities, be exchanged for Bearer Securities.
(d) If the Company shall establish pursuant to Section 3.1 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Securities in global form, then the Company shall execute
and the Trustee shall, in accordance with Section 3.3 and the Company Order with
respect to such series, authenticate and deliver one or more Securities in
global form in temporary or definitive form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more
Securities in global form, (ii) shall be registered in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, and (iii) shall bear a legend substantially to the following effect:
"This Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary, unless and until
this Security is exchanged in whole or in part for Securities in definitive
form."
Notwithstanding any other provision (other than the provisions set
forth in the seventh and eighth paragraphs of this Section) of this Section,
unless and until it is exchanged in whole or in part for Securities in
certificated form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the issuer receives such notice or becomes aware of
such ineligibility, the Company's election pursuant to Section 3.1 shall no
longer be effective with respect to the Securities of such series and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
<PAGE>
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
The Company may at any time in its sole discretion determine that
Securities of a series issued in global form shall no longer be represented by
such a Security or Securities in global form. In such event, the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge:
(i) to each person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Security in global form; and
(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are 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.
<PAGE>
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the Registrar
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to those of the Company, the Registrar and the
Trustee requiring such written instrument of transfer 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
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities of any particular series and tenor for a period
beginning at the opening of business 15 days before any selection for redemption
of Securities of such series and of like tenor and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
Section 3.6. REPLACEMENT SECURITIES. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a replacement Registered Security, if such surrendered Bearer Security
was a Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series, principal amount
and Stated Maturity, containing identical terms and provisions and bearing a
number not contemporaneously Outstanding if the Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen coupon, and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
<PAGE>
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series, principal amount and Stated Maturity,
containing identical terms and provisions and bearing a number not
contemporaneously Outstanding, if the Trustee's requirements are met.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; PROVIDED, HOWEVER, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of such
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a)
Unless otherwise provided as contemplated by Section 3.1, interest, if any, on
any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; PROVIDED, HOWEVER,
that, at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) to the extent specified as contemplated by
Section 3.1, by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
<PAGE>
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount, if any, on Bearer
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing provided that any such instruction for payment in the United States does
not cause any Bearer Security to be treated as a "registration-required
obligation" under the United States law and regulations. The interest, if any,
on any temporary Bearer Security shall be paid, as to any installment of
interest evidenced by a coupon attached thereto, only upon presentation and
surrender of such coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on a
Bearer Security or coupon shall become due, the payment of the full amount so
payable at the office or offices of all the Paying Agents outside the United
States is illegal or effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such amount in Dollars,
then the Company may instruct the Trustee to make such payments at a Paying
Agent located in the United States, provided that provision for such payment in
the United States would not cause such Bearer Security to be treated as a
"registration-required obligation" under the United States law and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on any Registered Security of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest in this clause (1)
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 in writing 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
<PAGE>
therefor to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at his address as it appears in
the Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on a specified date 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 (2), such manner of
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.6
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
Section 3.8. PERSONS DEEMED OWNERS. Prior to and at the time of due
presentment of any Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
<PAGE>
satisfy and discharge the liability for moneys payable upon such Security or
coupon.
None of the Company, the Trustee or any Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form, or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. Notwithstanding the foregoing, with
respect to any Security in global form, nothing herein shall prevent the Company
or the Trustee, or any agent of the Company or the Trustee, from giving effect
to any written certification, proxy or other authorization furnished by any
Depositary (or its nominee), as a Holder, with respect to such Security in
global form or impair, as between such Depositary and Owners of beneficial
interests in such Security in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Security in global form.
The Company shall have the right to require a Holder, in connection
with the payment of the principal of, premium, if any, and interest, if any, on
any Security, to certify information to the Company or, in the absence of such
certification, the Company will be entitled to rely on any legal presumption to
enable the Company to determine its duties and liabilities, if any, to deduct or
withhold taxes, assessments or governmental charges for such payment.
Section 3.9. CANCELLATION. The Company at any time may deliver to the
Trustee for cancellation any Securities or coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities or coupons previously
authenticated hereunder which the Company has not issued, and all Securities or
coupons so delivered shall be promptly cancelled by the Trustee. The Registrar
and any Paying Agent shall forward to the Trustee any Securities and coupons
surrendered to them for replacement, for registration of transfer, or for
exchange or payment. The Trustee shall cancel all Registered Securities and
matured coupons surrendered for replacement, for registration of transfer, or
for exchange, payment, redemption or cancellation and may dispose of cancelled
Securities and coupons and issue a certificate of destruction to the Company.
All Bearer Securities and unmatured coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be cancelled or held
for reissuance. Bearer Securities and unmatured coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.5
or in replacement of mutilated, lost stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related coupons pursuant to Section 3.6. All Bearer Securities and
unmatured coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation, except as expressly permitted by the terms of Securities for any
particular series or as permitted pursuant to the terms of this Indenture. All
cancelled Securities and coupons held by the Trustee shall be delivered to the
Company upon Company Request. The acquisition of any Securities or coupons by
the Company shall not operate as a redemption or satisfaction of the
<PAGE>
indebtedness represented thereby unless and until such Securities or coupons are
surrendered to the Trustee for cancellation. Definitive Securities in global
form shall not be destroyed until exchanged in full for definitive Securities in
certificated form or until payment thereon is made in full.
Section 3.10. COMPUTATION OF INTEREST. Except as otherwise specified
as contemplated by Section 3.1, (i) interest on any Securities that bear
interest at a fixed rate shall be computed on the basis of a 360-day year of
twelve 30-day months and (ii) interest on any Securities that bear interest at a
variable rate shall be computed on the basis of the actual number of days in an
interest period divided by 360.
Section 3.11. CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of, premium, if any, and interest, if any, on
any Registered or Bearer Security of such series will be made in the currency or
currencies or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 3.11
may be modified or superseded pursuant to Section 3.1 with respect to any
Securities. For all purposes of this Indenture, currency units shall include any
composite currency.
(b) It may be provided pursuant to Section 3.1, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.1, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article 4 or with respect to which a
notice of redemption has been given by the Company). Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee (or any applicable Paying Agent) not later than the close of business on
the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant currency or currency unit as provided in Section
3.11(a). The Trustee (or the applicable Paying Agent) shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written decision.
<PAGE>
(c) If the election referred to in paragraph (b) above has been
provided for with respect to any Registered Securities of a series pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent shall deliver to the Company a written
notice specifying, in the currency or currencies or currency unit or units in
which Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.1, and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the Trustee (or the
applicable Paying Agent) an Exchange Rate Officer's Certificate in respect of
the Dollar, Foreign Currency or Currencies, ECU or other currency unit payments
to be made on such date. Unless otherwise specified pursuant to Section 3.1, the
Dollar, Foreign Currency or Currencies, ECU or other currency unit amount
receivable by Holders of Registered Securities who have elected payment in a
currency or currency unit as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Market Exchange Rate in effect on
the second Business Day (the "Valuation Date") immediately preceding each
payment date, and such determination shall be conclusive and binding for all
purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
ECU or any other currency unit in which any of the Securities are denominated or
payable otherwise than pursuant to an election provided for pursuant to
paragraph (b) above, then, with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
be the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.1, the Dollar amount
to be paid by the Company to the Trustee or any applicable Paying Agent and by
the Trustee or any applicable Paying Agent to the Holders of such Securities
with respect to such payment date shall be determined, in the case of a Foreign
Currency other than a currency unit, on the basis of the Dollar Equivalent of
the Foreign Currency or, in the case of a Foreign Currency that is a currency
unit, on the basis of the Dollar Equivalent of the Currency Unit, in each case
<PAGE>
as determined by the Exchange Rate Agent in the manner provided in paragraph (f)
or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the Holder
of a Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
are provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would have been made
in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.11 (but, subject to any contravening
valid election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, becoming the currency or currency unit, as
applicable, of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency " shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting an official unit of the
specified Foreign Currency into Dollars at the Market Exchange Rate on the
Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and, subject to the provisions of paragraph (h)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency (as each such term is defined in paragraph (h)
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.11 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
"Election Date" shall mean the Regular Date for the applicable series
of Registered Securities as specified pursuant to Section 3.1 by which the
written election referred to in Section 3.11(b) may be made.
<PAGE>
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which such Component
Currency represented in the relevant currency unit, including, but not limited
to, ECU, on the Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not
limited to, ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocable binding upon the
Company, the Trustee (and any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to ECU
or any other currency unit in which Securities are denominated or payable, the
Company will promptly give written notice thereof to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent) will promptly thereafter give notice in the manner provided
in Section 1.6 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the event
the Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
the Company will similarly give written notice to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent.
<PAGE>
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.12. APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 3.1, if and so
long as the Securities of any series (i) are denominated in a currency or
currency unit other than Dollars or (ii) may be payable in a currency or
currency unit other than Dollars, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least on Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the necessary foreign
exchange determinations at the time and in the manner specified pursuant to
Section 3.11 for the purpose of determining the applicable rate of exchange and,
if applicable, for the purpose of converting the issued currency or currencies
or currency unit or units into the applicable payment currency or currency unit
for the payment of principal, premium, if any, and interest, if any, pursuant to
Section 3.11.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company shall promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed with
respect to the Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 3.1, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular series that
are originally issued by the Company on the same date and that are initially
denominated and/or payable in the same currency or currencies or currency unit
or units).
Section 3.13. 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 addition to the other identification numbers
printed on the Securities) 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
<PAGE>
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Section 3.14. JUDGMENTS. If for the purpose of obtaining a judgment in
any court with respect to any obligation of the Company hereunder or under any
Security, it shall become necessary to convert into any other currency any
amount in the currency due hereunder or under such Security, then such
conversion shall be made at the Market Exchange Rate as in effect on the date
the Company shall make payment to any Person in satisfaction of such judgment.
If pursuant to any such judgment, conversion shall be made on a date other than
the date payment is made and there shall occur a change between such Market
Exchange Rate and the Market Exchange Rate as in effect on the date of payment,
the Company agrees to pay such additional amounts (if any) as may be necessary
to ensure that the amount paid is equal to the amount in such other currency
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such
Security. Any amount due from the Company under this Section 3.14 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Security.
In no event, however, shall the Company be required to pay more in the currency
or currency unit due hereunder or under such Security at the Market Exchange
Rate as in effect when payment is made than the amount of currency stated to be
due hereunder or under such Security so that in any event the Company's
obligations hereunder or under such Security will be effectively maintained as
obligations in such currency, and the Company shall be entitled to withhold (or
be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion over the amount due and payable on the date of
payment or distribution.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. TERMINATION OF COMPANY'S OBLIGATIONS UNDER THE INDENTURE.
Except as otherwise provided as contemplated by Section 3.1, this Indenture
shall upon Company Request cease to be of further effect with respect to
Securities of or within any series and any coupons appertaining thereto (except
as to any surviving rights of registration of transfer or exchange of such
Securities and replacement of such Securities which may have been lost, stolen
or mutilated as herein expressly provided for) and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities and any coupons
appertaining thereto when
(1) either
(A) all such Securities previously authenticated and delivered
and all coupons appertaining thereto (other than (i) such coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities, and maturing after such exchange, surrender of
which is not required or has been waived as provided in Section 3.5,
(ii) such Securities and coupons which have been destroyed, lost or
<PAGE>
stolen and which have been replaced or paid as provided in Section
3.6, (iii) such coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date, surrender
of which has been waived as provided in Section 10.6 and (iv) such
Securities and coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 9.3) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) and
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which the Securities of such
series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal, premium, if
any, and interest, if any, with respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 6.9, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 9.3 shall survive. If, after
the deposit referred to in Section 4.1 has been made, (x) the Holder of a
Security is entitled to, and does, elect pursuant to Section 3.11(b), to receive
<PAGE>
payment in a currency other than that in which the deposit pursuant to Section
4.1 was made, or (y) if a Conversion Event occurs with respect to the currency
in which the deposit was made or elected to be received by the Holder pursuant
to Section 3.11(b), then the indebtedness represented by such Security shall be
fully discharged to the extent that the deposit made with respect to such
Security shall be converted into the currency in which such payment is made.
Section 4.2. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, if any, and any interest for whose payment such money
has been deposited with or received by the Trustee. Such money need not be
segregated from other funds except to the extent required by law and except that
the Trustee shall segregate moneys, funds and accounts held by the Trustee in
one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units.
Section 4.3. APPLICABILITY OF DEFEASANCE PROVISIONS; COMPANY OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.1 provision
is made for either or both of (i) defeasance of the Securities of or within a
series under Section 4.4 or (ii) covenant defeasance of the Securities of or
within a series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.6
through 4.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to such Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 4.4 (if applicable) or Section 4.5
(if applicable) be applied to such Securities and any coupons appertaining
thereto upon compliance with the conditions set forth below in this Article.
Section 4.4. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
the Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 4.6 are
satisfied (hereinafter "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.7 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall on Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive, solely from the
trust funds described in Section 4.6(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
<PAGE>
if any, on such Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 6.10, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (iv) this Article 4. Subject to
compliance with this Article 4, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 4.5 with
respect to such Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 4.5. COVENANT DEFEASANCE. Upon the Company's exercise of the
option specified in Section 4.3, applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4 and 9.5, and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4 and 9.5, or such other covenant,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, provision, covenant,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of any reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 5.1(3) or 5.1(6) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 4.6. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
Section 6.12 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Section 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in an amount (in such currency,
currencies or currency unit or units in which such Securities and any coupons
appertaining thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the option of Holders,
Government Obligations which through the payment of principal and interest in
<PAGE>
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities and any coupons appertaining thereto on the
Maturity of such principal or installment of principal or interest and (y) any
mandatory sinking fund payments applicable to such Securities on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto. Before such
a deposit the Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article 10
which shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Default or Event under Section 5.1(4) or 5.1(5) with respect to
such Securities and any coupons appertaining thereto shall have occurred and be
continuing during the period commencing on the date of such deposit and ending
on the 91st day after such date (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
stating that (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amounts and in the same manner and at the same times, as would have been
the case if such deposit, defeasance and discharge had not occurred.
(e) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
to the effect that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
<PAGE>
precedent to the defeasance under Section 4.4 or the covenant defeasance under
Section 4.5 (as the case may be) have been complied with.
(g) Such defeasance or covenant shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith as contemplated by Section 3.1.
Section 4.7. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1, including the proceeds thereof) deposited with the Trustee pursuant
to Section 4.6 in respect of any Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any. Such money need not be
segregated from other funds except to the extent required by law and except that
the Trustee shall segregate moneys, funds and accounts held by the Trustee in
one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 4.6 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Securities.
Unless otherwise specified with respect to any Security pursuant to
Section 3.1, if, after a deposit referred to in Section 4.6(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.11(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.6(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.11(d)
or 3.11(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of,
premium, if any, and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time specified below in
the case of any such election) the amount or other property deposited in respect
of such Security into the currency or currency unit in which such Security
becomes payable as a result of such election or Conversion Event based on the
applicable Market Exchange Rate for such currency or currency unit in effect on
the second Business Day prior to each payment date or, in the case of the
occurrence and continuance of a Conversion Event with respect to such currency
or currency unit, based on the applicable Market Exchange Rate for such currency
or currency unit which is in effect at the time of the Conversion Event.
<PAGE>
Section 4.8. TRANSFERS AND DISTRIBUTION AT COMPANY REQUEST. To the
extent permitted by the Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 76, as amended or interpreted by the
Financial Accounting Standards Board from time to time, or any successor thereto
("Standard No. 76"), or to the extent permitted by the Commission, the Trustee
shall, from time to time, take one or more of the following actions as specified
in a Company Request.
(a) Retransfer, assign and deliver to the Company any securities
deposited with the Trustee pursuant to Section 4.6(a), provided that the Company
shall, in substitution therefor, simultaneously transfer, assign, and deliver to
the Trustee other Government Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities; and
(b) The Trustee (and any Paying Agent) shall promptly pay to the
Company, upon Company Request, any excess money or securities held by them at
any time, including, without limitation, any assets deposited with the Trustee
pursuant to Section 4.6(a) exceeding those necessary for the purposes of Section
4.6(a).
The Trustee shall not take the actions described in subsections (a) and (b) of
this Section 4.8 unless it shall have first received a written report of Ernst &
Young L.L.P., or another nationally recognized independent public accounting
firm (i) expressing their opinion that the contemplated action is permitted by
Standard No. 76 or the Commission, for transactions accounted for as
extinguishment of debt under the circumstances described in paragraph 3.c of
Standard No. 76 or any successor provision and (ii) verifying the accuracy,
after giving effect to such action or actions, of the computations which
demonstrate that the amounts remaining to be earned on the Government
Obligations deposited with the Trustee pursuant to Section 4.6(a) will be
sufficient for purposes of Section 4.6(a).
Section 4.9. REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 4.7 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities of the series with respect to which such money
was deposited shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 4 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 4.7; PROVIDED,
however, that if the Company makes any payment of principal of (or premium, if
any, on) or interest on any Securities of any series following the reinstatement
of the Company's obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent with respect to such Securities.
<PAGE>
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. EVENTS OF DEFAULT. An "Event of Default" occurs with
respect to the Securities of any series if (regardless of the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series
as specified pursuant to Section 3.1(b)(16) when the same becomes due
and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
any premium on any Security of that series when the same becomes due
and payable at its Maturity or on redemption or otherwise, or in the
payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series;
(3) the Company defaults in the performance of, or breaches, any
covenant or warranty of the Company in this Indenture with respect to
any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and such default or breach continues
for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the
entry of an order for relief against it in an involuntary case, (C)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment
for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in
any involuntary case, (B) appoints a Custodian of the Company or for
all or substantially all of its property, or (C) orders the
liquidation of the Company and the order or decree remains unstayed
and in effect for 90 days; or
<PAGE>
(6) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 5.2. ACCELERATION; RESCISSION AND ANNULMENT. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice to the Company (and, if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable and upon any such declaration such principal
(or, in the case of Original Issue Discount Securities or Indexed Securities,
such specified amount) shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if all
existing Defaults and Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Section 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants
that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 10 days, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest, if any,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
<PAGE>
at the rate or rates prescribed therefor in such Securities or coupons, if any,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and coupons, if
any, and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and coupons, if any, wherever situated.
If an Event of Default with respect to Securities 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 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings, or any
voluntary or involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, relative to the Company or any other obligor upon the
Securities and coupons, if any, of a particular series or the property of the
Company or of such other obligor, the Trustee (irrespective of whether the
principal of such Securities shall then be due and payable as therein expressed
or by declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in
accordance with Section 5.2) (and premium, if any) and interest owing
and unpaid in respect of the Securities and any coupons of such series
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders of
such Securities and any coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
<PAGE>
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.9.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
and any coupons of such series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name, as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities or any coupons in respect of
which such judgment has been recovered.
Section 5.6. DELAY OR OMISSION NOT WAIVER. No delay or omission by the
Trustee or any Holder of any Security to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default. Every right and remedy
given by this Indenture or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 5.7. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
series by notice to the Trustee may waive on behalf of the Holders of all
Securities of such series a past Default or Event of Default with respect to
such series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security of
such series or any coupon appertaining thereto or (ii) in respect of a covenant
or provision hereof which pursuant to Section 8.2 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
adversely affected. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.8. CONTROL BY MAJORITY. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; PROVIDED, HOWEVER, that (i)
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, (ii) subject to Section 6.1, the Trustee may refuse to follow any
<PAGE>
direction that is unduly prejudicial to the rights of the Holders of Securities
of any such series not consenting, or that would in the good faith judgment of
the Trustee have a substantial likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.9. LIMITATION ON SUITS BY HOLDERS. No Holder of any Security
of any series or any related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a 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 indemnity
satisfactory to the Trustee against any loss, cost, liability or
expense to be, or which may be, incurred by the Trustee in pursuing
the remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more 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. For the protection and
enforcement of the provisions of this Section 5.9, each and every Holder of
Securities or any coupons of any series and the Trustee for such series shall be
entitled to such relief as can be given at law or in equity.
Section 5.10. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, but subject to Section 9.2, the right of
any Holder of a Security or coupon to receive payment of principal of, premium,
if any, and, subject to Sections 3.5 and 3.7, interest on such Security, on or
after the respective due dates expressed in such Security (or, in case of
redemption, on the Redemption Dates) and the right of any Holder of a coupon to
receive payment of interest due as provided in such coupon, or, subject to
Section 5.9, to bring suit for the enforcement of any such payment on or after
<PAGE>
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 5.11. APPLICATION OF MONEY COLLECTED. If the Trustee collects
any money pursuant to this Article, it shall pay out the money 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, premium, if any, or
interest, 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 Trustee for amounts due under Section 6.9;
SECOND: to Holders of Securities and coupons in respect of which
or for the benefit of which such money has been collected for amounts
due and unpaid on such Securities for principal of, premium, if any,
and interest, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
THIRD: to the Person or Persons entitled thereto.
Section 5.12. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. 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 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company.
<PAGE>
Section 5.15. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. CERTAIN DUTIES AND RESPONSIBILITIES. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. RIGHTS OF TRUSTEE. Subject to the provisions of the Trust
Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note 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 (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 3.3,
which shall be sufficiently evidenced as provided therein), 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 Officer's Certificate or Opinion of
Counsel.
(d) The Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
<PAGE>
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note 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.
(g) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care by its hereunder.
(h) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
Section 6.3. TRUSTEE MAY HOLD SECURITIES. The Trustee, any
Authenticating Agent, any Paying Agent, any Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company, an Affiliate or
Subsidiary with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Registrar or such other agent.
Section 6.4. MONEY HELD IN TRUST. Money held by the Trustee or any
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required by law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder except as
otherwise set forth in this Indenture or as otherwise agreed with the Company.
Section 6.5. TRUSTEE'S DISCLAIMER. The recitals contained herein and
in the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and neither the Trustee nor the
Authenticating Agent assumes any responsibility for their correctness. Neither
the Trustee nor the Authenticating Agent makes any representation as to the
validity or adequacy of this Indenture, the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.
<PAGE>
Section 6.6. NOTICE OF DEFAULTS. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to the Trustee,
the Trustee shall, within 90 days after it occurs, transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
all uncured Defaults known to it; PROVIDED, HOWEVER, that, in the case of a
Default in payment on the Securities of any series, the Trustee may withhold the
notice if and so long as the board of directors, the executive committee or a
committee of its Responsible Officers in good faith determines that withholding
such notice is in the interests of the Holders of Securities of such series;
PROVIDED FURTHER that, in the case of any Default or breach of the character
specified in Section 5.1(3) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof.
Section 6.7. REPORTS BY TRUSTEE TO HOLDERS. (a) Within 60 days after
each May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by Section
313(a) of the Trust Indenture Act. The Trustee also shall comply with Section
313(b) and (d) of the Trust Indenture Act and shall transmit to the Holders, in
the manner and to the extent provided in said Section 313(c) of the Trust
Indenture Act, such other reports, if any, as may be required pursuant to the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, 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 6.8. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession of the Registrar, the Company or any of its Paying
Agents other than the Trustee as to the names and addresses of Holders of
Securities of each such series. If there are Bearer Securities of any series
Outstanding, even if the Trustee is the Registrar, the Company shall furnish to
the Trustee such a list containing such information with respect to Holders of
such Bearer Securities only.
Section 6.9. COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time such
compensation as shall be agreed between the Company and the Trustee for all
services rendered by the Trustee hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon its request for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of its
duties under this Indenture, except any such expense as may be attributable to
<PAGE>
its negligence or bad faith. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it harmless
against, any loss, liability or expense incurred by it without negligence or bad
faith on its part arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest, if any, on particular
Securities.
(e) When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(4) or Section 5.1(5), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
(f) The provisions of this Section shall survive the termination of
this Indenture.
Section 6.10. REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
<PAGE>
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act 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 310(a)
of the Trust Indenture Act and shall fail to resign after written
request therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge
of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act,
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 resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of one or more
series, the Company shall promptly appoint a successor Trustee with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of such Securities and accepted
appointment in the manner required by Section 6.11, the resigning or retiring
Trustee, or 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.
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee, without
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
<PAGE>
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 (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, such 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, (ii)
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
(iii) 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 the
Trust Indenture Act.
(e) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
<PAGE>
provided for notices to the Holders of Securities in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.12. ELIGIBILITY; DISQUALIFICATION. There shall at all times
be a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $50,000,000 (or having a combined capital and surplus in
excess of $5,000,000 and the obligations of which, whether now in existence or
hereafter incurred, are fully and unconditionally guaranteed by a corporation
organized and doing business under the laws of the United States, any State or
Territory thereof or of the District of Columbia and having a combined capital
and surplus of at least $50,000,000). If the Trustee or such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such the Trustee or 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. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall comply with the relevant provisions
thereof.
Section 6.13. 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 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
<PAGE>
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements of
such 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 further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such 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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
<PAGE>
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated:
[_____________________________]
as Trustee
By__________________________________
as Authenticating Agent
By__________________________________
Authorized Signatory
Sections 6.2, 6.3, 6.5 and 6.9 shall be applicable to any Authenticating Agent.
Section 6.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than fifteen
Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
Section 6.16. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities or the coupons, if any), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
PERMITTED. The Company may merge or consolidate with or into any other
corporation or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its assets to any Person, if (i)(A) in the case of a merger
or consolidation, the Company is the surviving corporation or (B) in the case of
<PAGE>
a merger or consolidation where the Company is not the surviving corporation and
in the case of any such sale, conveyance or other disposition, the resulting,
successor or acquiring Person is a corporation organized and existing under the
laws of the United States, any State or the District of Columbia and such
corporation expressly assumes by supplemental indenture all the obligations of
the Company under the Securities and any coupons appertaining thereto and under
this Indenture, (ii) immediately thereafter, giving effect to such merger or
consolidation, or such sale, conveyance, transfer, lease or other disposition
(including, without limitation, any indebtedness directly or indirectly incurred
or anticipated to be incurred in connection with or in respect of such
transactions), no Default or Event of Default shall have occurred and be
continuing and (iii) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger or
consolidation, or such sale, conveyance, transfer, lease or other disposition,
complies with this Article and that all conditions precedent relating to such
transaction have been complied with as herein provided.
Section 7.2. SUCCESSOR CORPORATION SUBSTITUTED. Upon any merger or
consolidation of the Company with or into any other corporation or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of
the assets of the Company to any other Person, the successor corporation formed
by such consolidation or into which the Company is merged or the Person 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 a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. 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 reasonably satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to all
or any series of Securities; or
<PAGE>
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Bearer Securities (including, without limitation, to provide that
Bearer Securities may be registrable as to principal only) or to
facilitate the issuance of Securities in global form, PROVIDED that
any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture, PROVIDED that any such addition, change or elimination
shall become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.10; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any; or
(10) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the
interest of the Holders of Securities of any series in any material
respect, or to cure any ambiguity or correct any mistake; or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article 4, PROVIDED that any such action shall not adversely affect
the interests of the Holders of Securities of such series or any other
series of Securities or any related coupons in any material respect.
Section 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any other indenture
1
<PAGE>
supplemental hereto or to modify the rights of the Holders of Securities of each
such series; PROVIDED, HOWEVER, that without the consent of the Holder of each
Outstanding Security affected thereby, an amendment under this Section may not:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the coin or currency in which any
Securities or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture;
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2; or
(4) make any change in Section 5.7 or this Section 8.2 except to
increase any percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holders of each Outstanding Security affected thereby.
A supplemental indenture that 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 that 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.
Upon the request of the Company, accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture. It is not necessary under this Section 8.2 for the
Holders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
Section 8.3. COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the requirements
of the Trust Indenture Act as then in effect.
<PAGE>
Section 8.4. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 8.5. 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 and of any coupon appertaining
thereto shall be bound thereby.
Section 8.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities, including any coupons, 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 including any coupons of any series
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.
Section 8.7. NOTICE OF SUPPLEMENTAL INDENTURE. Promptly after the
execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 8.2, the Company shall transmit, in the manner and
to the extent provided in Section 1.6, to all Holders of any series of the
Securities affected thereby, a notice setting forth in general terms the
substance of such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST, IF
ANY. The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture. An installment of principal or interest
shall be considered paid on the date it is due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment.
Unless otherwise specified as contemplated by Section 3.1 with respect to any
series of Securities or except as otherwise provided in Section 3.7, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. If so provided
<PAGE>
in the terms of any series of Securities established as provided in Section 3.1,
the interest, if any, due in respect of any temporary Securities in global form
or definitive Security in global form, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such
Security, shall be payable only upon presentation of such Security to the
Trustee for notation thereon of the payment of such interest.
Section 9.2. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issued as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, (i) subject
to any laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, where
Securities of that series and related coupons may be presented and surrendered
for payment; PROVIDED, HOWEVER, that if the Securities of that series are listed
on any stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in any required city located outside the United States, as the case
may be, so long as the Securities of that series are listed on such exchange,
and (ii) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose of the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
<PAGE>
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind any such designation; PROVIDED, HOWEVER, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. MONEY FOR SECURITIES TO BE HELD IN TRUST; UNCLAIMED
MONEY. 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, premium, if any, or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing 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,
premium, if any, or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities;
(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; and
(4) acknowledge, accept and agree to comply in all respects with
the provisions of this Indenture relating to the duties, rights and
disabilities of the Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
<PAGE>
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of any principal, premium, if any,
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security and coupon,
if any, shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 9.4. CORPORATE EXISTENCE. Subject to Article 7, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; PROVIDED that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company, if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company and does not materially adversely affect the ability of the
Company to operate its business or to fulfill its obligations hereunder.
Section 9.5. REPORTS BY THE COMPANY. The Company covenants:
(a) to file with the Trustee, within 30 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 it 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; or if it is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a Security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by it
with the conditions and covenants contained or provided for in this Indenture,
as may be required from time to time by such rules and regulations; and
<PAGE>
(c) to transmit to all Holder of Securities, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by it pursuant to subsections (a) and
(b) of this Section 9.5, as may be required by rules and regulations prescribed
from time to time by the Commission.
Section 9.6. ANNUAL REVIEW CERTIFICATE; NOTICE OF DEFAULT. The Company
covenants and agrees to deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, a brief certificate from the principal
executive officer, principal financial officer, or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of Section 9.7, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. The Company shall file with the Trustee
written notice of occurrence of any Event of Default within thirty Business Days
of its becoming aware of any such Event of Default.
Section 9.7. WAIVER OF CERTAIN COVENANTS AND CONDITIONS. The Company
may omit in any particular instance to comply with any term, covenant, provision
or condition set forth in Sections 9.4 through 9.6, inclusive, or established
pursuant to Section 3.1 with respect to the Securities of any series if before
or after the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waiver such compliance in such instance or generally waive
compliance with such term, covenant, provision or condition, but no such waiver
shall extend to or affect such term, covenant, provision 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 term, covenant, provision or condition shall remain in full force and
effect.
ARTICLE 10
REDEMPTION
Section 10.1. APPLICABILITY OF ARTICLE. Securities (including coupons,
if any) of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in accordance with
this Article.
Section 10.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Securities, including coupons, if any, shall be
evidenced by a Board Resolution or, in the case of an election made pursuant to
authority granted in a Board Resolution, an Officer's Certificate. In the case
of any redemption at the election of the Company of less than all the Securities
of coupons, if any, of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
to the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
<PAGE>
provided in the terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
Section 10.3. SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities
(including coupons, if any) of a series with the same original issue date,
interest rate and Stated Maturity are to be redeemed, the Trustee, not more than
45 days prior to the Redemption Date, shall select the Securities of the series
to be redeemed in such manner as the Trustee shall deem fair and appropriate.
The Trustee shall make the selection from Securities of the series that are
Outstanding and that have not previously been called for redemption and may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities including coupons, if any, of that series
or any integral multiple thereof) of the principal amount of Securities,
including coupons, if any, of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected by the Trustee
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4. NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
<PAGE>
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to
the Paying Agent to collect the redemption price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee and any Paying Agent is furnished; and
(10) CUSIP number (if any).
Notice of redemption of Securities to be redeemed 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 10.5. DEPOSIT OF REDEMPTION PRICE. On or prior to 12:00 Noon
New York City 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 9.3) an amount of
money in the currency or currencies (including currency units or composite
currencies) in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.1 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (unless
the Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
<PAGE>
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; PROVIDED, HOWEVER, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of coupons for such interest; and PROVIDED FURTHER that, unless otherwise
specified as contemplated by Section 3.1, installments of interest on Registered
Securities whose Stated Maturity is prior to the Redemption Date shall be
payable to the Holder 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 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
PROVIDED, HOWEVER, that interest represented by coupons shall be payable only at
an office or agency located outside of the United States (except as otherwise
provided pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part at any 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), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series and of like tenor with the same form and the same Maturity in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal of the Security surrendered; provided, however, that
the Depositary need not surrender a Security in global form for a partial
redemption and may be authorized to make a notation on such Security of such
partial redemption. In the case of a partial redemption of a Security in global
form, the Depositary, and in turn, the participants in the Depositary, shall
have the responsibility to select any Securities to be redeemed by random lot.
<PAGE>
ARTICLE 11
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for any series of Securities
(unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer's Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 11.2 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 10.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
-------------------
<PAGE>
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CONTINENTAL AIRLINES, INC.,
as Issuer
By_____________________________________
Title:
Attest:
________________________________
Title:
[_________________________], as Trustee
By_____________________________________
Title:
Attest:
________________________________
Title:
EXHIBIT 4.2
FORM OF SUBORDINATED INDENTURE
<PAGE>
CONTINENTAL AIRLINES, INC., Issuer
to
[__________________________], Trustee
INDENTURE
Dated as of June __, 1997
Providing for Issuance of
Senior Subordinated Debt Securities in Series
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION......................................... 1
1.1 Definitions................................................. 1
1.2 Compliance Certificates and Opinions........................ 9
1.3 Form of Documents Delivered to Trustee...................... 10
1.4 Acts of Holders............................................. 11
1.5 Notices, etc., to Trustee and Company....................... 12
1.6 Notice to Holders; Waiver................................... 13
1.7 Headings and Table of Contents.............................. 14
1.8 Successors and Assigns...................................... 14
1.9 Separability................................................ 14
1.10 Benefits of Indenture....................................... 14
1.11 Governing Law............................................... 14
1.12 Legal Holidays.............................................. 14
1.13 Trustee to Establish Record Dates........................... 15
1.14 No Security Interest Created................................ 15
1.15 Liability Solely Corporate.................................. 15
ARTICLE 2 SECURITY FORMS.............................................. 15
2.1 Forms Generally............................................. 15
2.2 Form of Trustee's Certificate of Authentication............. 16
2.3 Securities in Global Form................................... 16
ARTICLE 3 THE SECURITIES.............................................. 17
3.1 Amount Unlimited; Issuable in Series........................ 17
3.2 Denominations............................................... 21
3.3 Execution, Authentication, Delivery and Dating.............. 21
3.4 Temporary Securities........................................ 25
3.5 Registration, Registration of Transfer and Exchange......... 26
3.6 Replacement Securities...................................... 30
3.7 Payment of Interest; Interest Rights Preserved.............. 31
3.8 Persons Deemed Owners....................................... 33
3.9 Cancellation................................................ 33
3.10 Computation of Interest..................................... 34
3.11 Currency and Manner of Payment in Respect of Securities..... 34
3.12 Appointment and Resignation of Exchange Rate Agent.......... 38
3.13 CUSIP Numbers............................................... 39
3.14 Judgments................................................... 39
<PAGE>
ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE...................... 40
4.1 Termination of Company's Obligations Under the Indenture.... 40
4.2 Application of Trust Funds.................................. 41
4.3 Applicability of Defeasance Provisions; Company Option
to Effect Defeasance or Covenant Defeasance................. 41
4.4 Defeasance and Discharge.................................... 42
4.5 Covenant Defeasance......................................... 42
4.6 Conditions to Defeasance or Covenant Defeasance............. 43
4.7 Deposited Money and Government Obligations To Be
Held in Trust............................................... 44
4.8 Transfers and Distribution at Company Request............... 45
4.9 Reinstatement............................................... 46
ARTICLE 5 DEFAULTS AND REMEDIES....................................... 46
5.1 Events of Default........................................... 46
5.2 Acceleration; Rescission and Annulment...................... 47
5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................. 48
5.4 Trustee May File Proofs of Claim............................ 49
5.5 Trustee May Enforce Claims Without Possession of Securities. 49
5.6 Delay or Omission Not Waiver................................ 50
5.7 Waiver of Past Defaults..................................... 50
5.8 Control by Majority......................................... 50
5.9 Limitation on Suits by Holders.............................. 50
5.10 Rights of Holders to Receive Payment........................ 51
5.11 Application of Money Collected.............................. 51
5.12 Restoration of Rights and Remedies.......................... 52
5.13 Rights and Remedies Cumulative.............................. 52
5.14 Undertaking for Costs....................................... 52
5.15 Waiver of Stay or Extension Laws............................ 52
ARTICLE 6 THE TRUSTEE................................................. 53
6.1 Certain Duties and Responsibilities......................... 53
6.2 Rights of Trustee........................................... 53
6.3 Trustee May Hold Securities................................. 54
6.4 Money Held in Trust......................................... 54
6.5 Trustee's Disclaimer........................................ 54
6.6 Notice of Defaults.......................................... 54
6.7 Reports by Trustee to Holders............................... 55
<PAGE>
6.8 Securityholder Lists........................................ 55
6.9 Compensation and Indemnity.................................. 55
6.10 Replacement of Trustee...................................... 56
6.11 Acceptance of Appointment by Successor...................... 57
6.12 Eligibility; Disqualification............................... 59
6.13 Merger, Conversion, Consolidation or Succession to Business. 59
6.14 Appointment of Authenticating Agent......................... 59
6.15 Trustee's Application for Instructions from the Company..... 61
6.16 Preferential Collection of Claims Against Company........... 61
ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE COMPANY................ 61
7.1 Consolidation, Merger or Sale of Assets by the Company
Permitted................................................... 61
7.2 Successor Corporation Substituted........................... 62
ARTICLE 8 SUPPLEMENTAL INDENTURES..................................... 62
8.1 Supplemental Indentures without Consent of Holders.......... 62
8.2 Supplemental Indentures with Consent of Holders............. 64
8.3 Compliance with Trust Indenture Act......................... 65
8.4 Execution of Supplemental Indentures........................ 65
8.5 Effect of Supplemental Indentures........................... 65
8.6 Reference in Securities to Supplemental Indentures.......... 65
8.7 Notice of Supplemental Indenture............................ 65
ARTICLE 9 COVENANTS................................................... 65
9.1 Payment of Principal, Premium, if Any, and Interest, if Any. 65
9.2 Maintenance of Office or Agency............................. 66
9.3 Money for Securities to Be Held in Trust; Unclaimed Money... 67
9.4 Corporate Existence......................................... 68
9.5 Reports by the Company...................................... 68
9.6 Annual Review Certificate; Notice of Default................ 69
9.7 Waiver of Certain Covenants and Conditions.................. 69
ARTICLE 10 REDEMPTION.................................................. 69
10.1 Applicability of Article.................................... 69
10.2 Election to Redeem; Notice to Trustee....................... 70
10.3 Selection of Securities To Be Redeemed...................... 70
10.4 Notice of Redemption........................................ 70
<PAGE>
10.5 Deposit of Redemption Price................................. 71
10.6 Securities Payable on Redemption Date....................... 72
10.7 Securities Redeemed in Part................................. 73
ARTICLE 11 SINKING FUNDS............................................... 72
11.1 Applicability of Article.................................... 72
11.2 Satisfaction of Sinking Fund Payments with Securities....... 72
11.3 Redemption of Securities for Sinking Fund................... 72
ARTICLE 12 SUBORDINATION OF SECURITIES................................. 73
12.1 Securities Subordinated to Senior Indebtedness.............. 73
12.2 No Payments in Certain Circumstances; Payment Over of
Proceeds Upon Dissolution, Etc. ............................ 74
12.3 Obligation of the Company Unconditional..................... 75
12.4 Notice to Trustee of Specified Events; Reliance on
Certificate of Liquidating Agent............................ 76
12.5 Trustee Not Charged with Knowledge of Prohibition........... 76
12.6 Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness................ 77
12.7 Holders Authorize Trustee to Effectuate Subordination of
Securities.................................................. 77
12.8 Right of Trustee to Hold Senior Indebtedness................ 77
12.9 Trustee Not Fiduciary for Holders of Senior Indebtedness.... 78
12.10 Article 12 Not to Prevent Events of Default................. 78
12.11 Payment Agent Other Than the Trustee........................ 78
12.12 Trustee's Compensation Not Prejudiced....................... 78
12.13 Trust Moneys Not Subordinated............................... 78
SIGNATURES ............................................................ 79
<PAGE>
Reconciliation and tie between Indenture, dated as of June __, 1997, and the
Trust Indenture Act of 1939, as amended.
Trust Indenture Act
of 1939 Section Indenture Section
- ------------------- -----------------
310(a)(1) 6.12
(a)(2) 6.12
(a)(3) TIA
(a)(4) Not Applicable
(a)(5) TIA
(b) 6.10; 6.12; TIA
311(a) TIA
(b) TIA
(c) Not Applicable
312(a) 6.8
(b) TIA
(c) TIA
313(a) 6.7; TIA
(b) TIA
(c) TIA
(d) TIA
314(a) 9.6; 9.7; TIA
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) TIA
315(a) TIA
(b) 6.6
(c) TIA
(d)(1) TIA
(d)(2) TIA
(d)(3) TIA
(e) TIA
<PAGE>
316(a) (last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
(c) TIA
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(b) TIA
(c) 1.11; TIA
- ----------------------------------
This reconciliation and tie section does not constitute part of the Indenture.
<PAGE>
INDENTURE, dated as of June __, 1997, among CONTINENTAL AIRLINES,
INC., a Delaware corporation (the "Company"), as issuer and [_______________], a
[ ], as Trustee (the "Trustee").
RECITALS
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 ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or
series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. DEFINITIONS.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"AFFILIATE" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
<PAGE>
control with, such specified Person. For 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" means any Paying Agent or Registrar.
"AUTHENTICATING AGENT" means any authenticating agent appointed by
the Trustee pursuant to Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
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. Whenever successive publications in an Authorized Newspaper are required
hereunder they may be made (unless otherwise expressly provided herein) on any
Business Day and in the same or different Authorized Newspapers.
"BEARER SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is payable to
bearer (including any Security in global form payable to bearer) and title to
which passes by delivery only, but does not include any coupons.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company, the Executive Committee of the Company or any other duly authorized
committee of such Board of Directors.
"BOARD RESOLUTION" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"CAPITAL LEASE" means any lease obligation of a person incurred with
respect to real property or equipment acquired or leased by such person and used
in its business that is required to be recorded on its balance sheet as a
capitalized lease in accordance with generally accepted accounting principles
consistently applied.
"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 Indenture such
<PAGE>
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 one or more successor corporations shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter means such successor or successors.
"COMPANY ORDER" and "COMPANY REQUEST" mean, respectively, a written
order or request signed in the name of the Company by the Chairman of the Board,
the President, any Executive Vice President, any Senior Vice President or any
Vice President, signing alone, or, with respect to Sections 3.3, 3.4, 3.5 and
6.1, any other employee of the Company named in an Officer's Certificate
delivered to the Trustee.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit other than the ECU for the purposes for which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
[_______________].
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"DEPOSITARY", when used with respect to the Securities of or within
any series issuable or issued in whole or in part in global form, means the
Person designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"DOLLAR" and the sign "$" mean the coin or currency of the United
States which at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"EUROPEAN COMMUNITIES" means European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
<PAGE>
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EXCHANGE RATE AGENT", when used with respect to Securities of or
within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, a New York Clearing House bank designated
pursuant to Section 3.1 or Section 3.12.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (of an aggregate basis and on the basis of a Security
having the lowest denomination principal amount in the relevant currency or
currency unit), payable with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation, signed by the
Treasurer, any Executive Vice President, any Senior Vice President, any Vice
President or any Assistant Treasurer of the Company.
"FOREIGN CURRENCY" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States or such other government, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depositary receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depositary
receipt.
"HOLDER" means, with respect to a Bearer Security or coupon, a bearer
thereof and, with respect to a Registered Security, a person in whose name a
Security is registered on the Register.
"INDENTURE" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms (but not
defined terms established by or pursuant to a Board Resolution) of particular
series of Securities established as contemplated by Sections 2.1 and 3.1.
<PAGE>
"INDEXED SECURITY" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City, London or other principal market for such currency or currency unit in
question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"MATURITY" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, the President, any
Executive Vice President, any Senior Vice President, any Vice President, the
Treasurer or Secretary of the Company.
<PAGE>
"OFFICER'S CERTIFICATE" means a certificate signed by an Officer of
the Company signing alone, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of legal counsel, who
may be (a) an attorney employed by the Company, (b) Hughes Hubbard & Reed LLP or
(c) other counsel designated by the Company and who shall be acceptable to the
Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"OUTSTANDING" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto PROVIDED that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5., with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
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
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
<PAGE>
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of the Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (w) above) of such Security, (y) the principal amount of any
Indexed Security that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 3.1 and (z)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"PAYING AGENT" means any person authorized by the Company to pay the
principal of, premium, if any, or interest, if any, on any Securities on behalf
of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities
thereof, the original issue date or dates thereof, the redemption provisions, if
any, with respect thereto, and any other terms specified as contemplated by
Section 3.1 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of or
within any series, means the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest, if any, on such
Securities are payable as specified as contemplated by Section 3.1.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
<PAGE>
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 2.1 which is registered as
to principal and interest in the Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, shall
mean any vice president, assistant vice president, any senior trust officer, or
any trust officer, in the Corporate Trust Office of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
and also means, with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such corporate trust matter is referred because
of his knowledge of and familiarity with the particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
the Registered Securities of any issue means a date fixed by the Trustee
pursuant to Section 3.7.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"SUBSIDIARY" means any corporation of which the Company at the time
owns or controls, directly or indirectly, more than 50% of the shares of
outstanding stock having general voting power under ordinary circumstances to
elect a majority of the Board of Directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in effect on the date of this Indenture, except as provided in
Section 8.3.
"TRUSTEE" means the party named as such in the first paragraph of
this Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
<PAGE>
"UNITED STATES" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. PERSON" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
"YIELD TO MATURITY" means the yield to maturity, calculated by the
Company at the time of issuance of a series of Securities or, if applicable, at
the most recent determination of interest on such series, in accordance with
accepted financial practice.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
TERM SECTION
- ---- -------
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.11(h)
"Conversion Date" 3.11(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Dollar Equivalent of the Foreign Currency" 3.11(f)
"Dollar Equivalent of the Currency Unit" 3.11(g)
"Election Date" 3.11(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Senior Indebtedness" 12.1
"Specified Amount" 3.11(h)
"Valuation Date" 3.11(c)
Section 1.2. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
<PAGE>
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3, 3.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made or caused to be made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion 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 as to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. Except as herein otherwise expressly
<PAGE>
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in clause (b) of this Section 1.4.
Whenever any action or Act is to be taken hereunder by the Holders of Securities
denominated in different currencies or currency units, then for purposes of
determining the principal amount of Securities held by such Holders, the
aggregate principal amount of the Securities denominated in a foreign currency
or currency unit shall be deemed to be the Dollar equivalent amounts thereof
determined by the Company on the basis of the applicable Market Exchange Rates
in effect as of the date of the taking of such action or Act by the Holders of
the requisite percentage in principal amount of the Securities (the "Action
Date"), except that if a Conversion Event has occurred with respect to a foreign
currency or currency unit and is continuing, the Dollar equivalent amounts of
Securities denominated in such foreign currency or currency unit shall be
determined on the basis of the Dollar Equivalent of the Foreign Currency or the
Dollar Equivalent of the Currency Unit (computed in accordance with Sections
3.11(f) and (g), except that for purposes of computing the Dollar Equivalent of
the Currency Unit, references to the "Valuation Date" shall be deemed to refer
to the date of the taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities).
(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 reasonable manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other reasonable manner which the Trustee
deems sufficient.
<PAGE>
(d) The ownership of Registered Securities shall be proved by the
Register or by a certificate of the Registrar.
(e) 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.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to an Officer's Certificate delivered
to the Trustee, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; PROVIDED, that no such authorization,
agreement or consent by the -------- Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of clause
(a) of this Section 1.4 no later than six months after the record date.
(g) At any time prior to (but not after) the evidencing to the
Trustee, as provided in clause (a) of this Section 1.4, of the taking of any Act
by the Holders of the percentage in aggregate principal amount of the
Outstanding Securities specified in this Indenture in connection with such Act,
any Holder of a Security, the number, letter or other distinguishing symbol of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such Act, may, by filing written notice with the Trustee
at the Corporate Trust Office and upon proof of ownership as provided in this
Section 1.4, revoke such Holder's consent to such Act so far as it concerns such
Security.
(h) The Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section 1.4 so long as this
request is a reasonable one.
Section 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(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: [__________], or
<PAGE>
(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 2929 Allen Parkway, Suite
2010, Houston, Texas 77019, Attention: Chief Executive Officer and
General Counsel or at any other address furnished in writing to the
Trustee by the Company prior to the mailing thereof.
Section 1.6. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein expressly provided or otherwise
agreed to by a Holder) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Register, within the time prescribed for the giving of such notice and (ii) if
any of the Securities affected by such event are Bearer Securities, notice to
the Holders thereof shall be sufficiently given (unless otherwise herein or in
the terms of such Bearer Securities expressly provided) if published once in an
Authorized Newspaper in New York, New York, and in such other city or cities, if
any, as may be specified as contemplated by Section 3.1(5).
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice as provided
above, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
<PAGE>
Section 1.7. HEADINGS AND TABLE OF CONTENTS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.9. SEPARABILITY. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.10. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto, any Registrar, any Paying Agent and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.11. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture is subject to the Trust
Indenture Act and if any provision hereof limits, qualifies or conflicts with
the duties imposed on any person by the provision of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 1.12. LEGAL HOLIDAYS. Unless otherwise specified pursuant to
Section 3.1 or in any Security, in any case where any Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of principal,
premium, if any, or interest need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such date; PROVIDED that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be, to such Business Day if such payment
is made or duly provided for on such Business Day.
Section 1.13. TRUSTEE TO ESTABLISH RECORD DATES. The Trustee shall
fix a record date for the purpose of determining the Holders entitled to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date and
only such Holders, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action shall be valid
or effective if made, given or taken more than 90 days after such record date.
<PAGE>
Section 1.14. NO SECURITY INTEREST CREATED. Nothing in this Indenture
or in the Securities or coupons, if any, express or implied, shall be construed
to constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect in any jurisdiction where
property of the Company or its Subsidiaries is or may be located.
Section 1.15. LIABILITY SOLELY CORPORATE. No recourse shall be had
for the payment of the principal of (or premium, if any) or the interest on any
Securities or coupons, if any, or any part thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company (or any incorporator,
stockholder, officer or director of any predecessor or successor corporation),
either directly or through the Company (or any such predecessor or successor
corporation), whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Securities and coupons, if
any, are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator, stockholder, officer
or director, past, present or future, of the Company (or any incorporator,
stockholder, officer or director of any such predecessor or successor
corporation), either directly or indirectly through the Company or any such
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants, promises
or agreements contained in this Indenture or in any of the Securities or
coupons, if any, or to be implied herefrom or therefrom; and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issue of Securities; PROVIDED, HOWEVER, that nothing herein or in the Securities
or coupons, if any, contained shall be taken to prevent recourse to and the
enforcement of the liability, if any, of any stockholder or subscriber to
capital stock upon or in respect of the shares of capital stock not fully paid.
ARTICLE 2
SECURITY FORMS
Section 2.1. FORMS GENERALLY. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form
(including global form) as shall be established by or pursuant to authority
granted in 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 and coupons, if any, as evidenced by their
execution of the Securities and coupons, if any. If temporary Securities of any
series are issued as permitted by Section 3.4, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by or pursuant to a Board
<PAGE>
Resolution, such Board Resolution (and, if applicable, an Officer's Certificate
certifying the action taken pursuant to such Board Resolution) shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the officers executing
such Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
Section 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated: [______________________], as Trustee
By_________________________________
Authorized Signatory
Section 2.3. SECURITIES IN GLOBAL FORM. If Securities of or within a
series are issuable in whole or in part in temporary or definitive global form,
as specified as contemplated by Section 3.1, then, notwithstanding clause (8) of
Section 3.1(b) and the provisions of Section 3.2, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made by the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall
deliver and redeliver any Security in global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 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 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
<PAGE>
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest, if any, on any Security in definitive global form
shall be made to the Person or Persons specified therein.
ARTICLE 3
THE SECURITIES
Section 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
(b) The following matters shall be established and (subject to
Section 3.3) set forth, or determined in the manner provided, in a Board
Resolution, and, in the case of matters established or determined pursuant to a
Board Resolution, set forth in an Officer's Certificate certifying the action
taken pursuant to such Board Resolution, or one or more indentures supplemental
hereto:
(1) the title of the Securities of the series (which title 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 (which limit shall not pertain to (i) Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6 or 10.7 and (ii) any Securities which,
pursuant to the last paragraph of Section 3.3, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates on which or periods during which the
Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and premium,
if any, on) the Securities of such series are or may be payable (which,
if so provided in such Board Resolution or supplemental indenture, may
be determined by the Company from time to time and set forth in the
Securities of the series issued from time to time);
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest shall
accrue (which, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Securities of the series issued from time to time) or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable (or the method
of determination thereof) and, with respect to Registered Securities,
<PAGE>
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest, if any, on
Securities of the series shall be payable; the extent to which, or the
manner in which, any interest payable on any Security in global form on
an Interest Payment Date will be paid, if other than in the manner
provided in Section 3.7; and the manner in which any principal of, or
premium, if any, on, any Security in global form will be paid, if other
than as set forth elsewhere herein;
(6) the period or periods within which, or the date or dates on
which, the price or prices at which, the currency or currencies
(including currency units) in which, and the other terms and conditions
upon which, Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than as provided in
Section 10.3, the manner in which the particular Securities of such
series (if less than all Securities of such series are to be redeemed)
are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price or
prices at which, and the other terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000, if Bearer Securities, the denominations in
which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or
in which the Securities of the series shall be denominated, the
particular provisions applicable thereto in accordance with, in addition
to, or in lieu of the provisions of Section 3.11, and whether the
Securities of the series may be satisfied and discharged other than as
provided in Article 4;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at the
election of the Company or a Holder, in a currency or currencies
(including currency units) other than that in which such Securities are
denominated or designated to be payable, the currency or currencies
(including currency units) in which such payments are to be made, the
terms and conditions of such payments and the manner in which the
exchange rate with respect to such payments shall be determined, the
particular provisions applicable thereto in accordance with, in addition
to, or in lieu of the provisions of Section 3.11, and whether the
Securities of the series may be satisfied and discharged other than as
provided in Article 4;
<PAGE>
(11) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a currency
or currencies (including currency units) other than that in which the
Securities of the series are denominated or designated to be payable),
the index, formula or other method by which such amounts shall be
determined;
(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion shall be
determined;
(13) if other than as provided in Section 3,7, the Person to
whom any interest on any Registered Security of the series shall be
payable, the manner in which, or the Person to whom, any interest on any
Bearer Securities of the series shall be payable, and the extent to
which, or the manner in which (including any certification requirement
and other terms and conditions under which), any interest payable on a
temporary or definitive global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 2.3 and Section
3.4, as applicable;
(14) provisions, if any, granting special rights to Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article 9 pertaining to the Securities of the series;
(16) the circumstances, if any, under which the Company will pay
additional amounts on the Securities of that series held by a Person who
is not a U.S. Person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts (and the terms
of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering, sale
or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(19) the applicability, if any, to the Securities of or within
the series of Sections 4.4 and 4.5, or such other means of defeasance or
covenant defeasance as may be specified for the Securities and coupons,
if any, of such series, and whether, for the purpose of such defeasance
<PAGE>
or covenant defeasance, the term "Government Obligations" shall include
obligations referred to in the definition of such term which are not
obligations of the United States or an agency or instrumentality of the
United States;
(20) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(21) the designation of the initial Exchange Rate Agent, if any;
(22) whether Securities of the series shall be issued in whole
or in part in temporary or definitive global form and, if so, (i) the
initial Depositary for such global Securities (which Depositary shall
have the qualifications set forth in Section 3.3) and (ii) if other than
as provided in Section 3.4 or 3.5, as applicable, whether and the
circumstances under which beneficial owners of interests in any
Securities of the series in temporary or definitive global form may
exchange such interests for Securities of such series and of like tenor
of any authorized form and denomination;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Security in
global form (representing all of the Outstanding Bearer Securities of
the series) payable in respect of any Interest Payment Date prior to the
exchange of such temporary Security for definitive Securities of the
series shall be paid to any clearing organization with respect to the
portion of such temporary Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date, and (y) the terms upon
which interests in such temporary Security in global form may be
exchanged for interests in a definitive Security in global form or for
definitive Securities of the series and the terms upon which interests
in a definitive Security in global form, if any, may be exchanged for
definitive Securities of the series; and
(24) if other than as provided in Article 12, the terms and
conditions under which the Securities will be subordinated to the Senior
Indebtedness of the Company; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities
of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except as to denomination, the terms of redemption and the rate or
rates of interest (or method of determining the rate of interest), if any, and
Stated Maturity, the date from which interest, if any, shall accrue and except
as may otherwise be provided, or determined pursuant to the authority granted,
in a Board Resolution pursuant to this Section 3.1 or in an indenture
<PAGE>
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officer's Certificate of the Company, setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof. With respect to Securities of a series
subject to a Periodic Offering, such Board Resolutions and Officer's
Certificates may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order, or that such terms shall be determined by the
Company, or one or more of its agents, designated in its Officer's Certificate
or Board Resolution, in accordance with the Company Order, as contemplated by
the first proviso of the third paragraph of Section 3.3.
Section 3.2. DENOMINATIONS. Unless otherwise provided as contemplated
by Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in denominations of $5,000.
Section 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its Chairman of the
Board or President and attested to by its Secretary or one of its Assistant
Secretaries. The Company's seal shall be affixed to the Securities, or a
facsimile of such seal shall be engraved, printed, or otherwise reproduced on
the Securities. The signatures of such officers on the Securities may be manual
or facsimile. The coupons, if any, of Bearer Securities shall bear the facsimile
signature of the Chairman of the Board or President and shall be attested by the
Secretary of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time 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, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; PROVIDED, HOWEVER, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
<PAGE>
Securities of such series; PROVIDED, FURTHER, that, in connection with its sale
during the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury Regulations), no Bearer Security shall be mailed or
otherwise delivered to any location in the United States. If any Security shall
be represented by a definitive Security in global form, then, for purposes of
this Section and Section 3.4, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion of
a temporary Security in global form shall be deemed to be delivery in connection
with the original issuance of such beneficial owner's interest in such
definitive Security in global form. Except as permitted by Section 3.6 or 3.7,
the Trustee shall not authenticate and deliver any Bearer Security unless all
coupons for interest then matured have been detached and cancelled.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or Officer's
Certificates as permitted by Sections 2.1 and 3.1, in authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 315(a) through (d) of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities and
coupons conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and
deliver such Securities and coupons;
(2) that the forms and terms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(3) the execution and delivery of such Securities and coupons
have been duly authorized by all necessary corporate action of the
Company and such Securities and coupons have been duly executed by the
Company, and that such Securities together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and subject to other
customary exceptions;
(4) in the event that the forms or terms of such Securities and
coupons have been established in a supplemental indenture, the execution
and delivery of such supplemental indenture has been duly authorized by
all necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee, is a
valid and binding obligation enforceable against the Company in
<PAGE>
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
subject to other customary exceptions; and
(5) the amount of Securities Outstanding of such series,
together with the amount of such Securities, does not exceed any limit
established under the terms of this Indenture on the amount of
Securities of such series that may be authenticated and delivered;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms
of such Securities (when established by or in accordance with such
procedures as may be specified from time to time in a Company Order, all
as contemplated by and in accordance with a Board Resolution or an
Officer's Certificate pursuant to Section 3.1, as the case may be) will
have been, established in conformity with the provisions of this
Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and subject to other customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 2.1 and 3.1 and this Section,
as applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officer's Certificates as permitted by
Sections 2.1 and 3.1, the Trustee shall have the right to decline to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will adversely affect the Trustee's own rights, duties or immunities
<PAGE>
under this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee. Notwithstanding the generality of the foregoing, the Trustee
will not be required to authenticate Securities denominated in a Foreign
Currency if the Trustee reasonably believes that it would be unable to perform
its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 3.1 at or prior to the time
of the authentication of each Security of such series if such Officer's
Certificate is delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instruction.
Each Depositary designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so registered.
Each Depositary shall enter into an agreement with the Trustee governing the
respective duties and rights of such Depositary and the Trustee with regard to
Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security (including a Bearer Security represented
by a temporary global Security) shall be dated as of the date specified as
contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
such Security is authenticated by the manual signature of one of the authorized
signatories of the Trustee or an Authenticating Agent. Such signature upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered under this Indenture and is entitled
to the benefits of this Indenture. Except as permitted by Section 3.6 or 3.7,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
<PAGE>
with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in a global form.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of such definitive Securities, the temporary Securities shall be
exchangeable for such definitive Securities of like tenor upon surrender of the
temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; PROVIDED, HOWEVER, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and PROVIDED, FURTHER that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in the Board Resolution or Officer's Certificate relating thereto and
such deliver shall occur only outside the United States. 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 except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. (a)
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency to be maintained by the Company in accordance with
Section 9.2 in a Place of Payment a register (the "Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and the registration of transfers
of Registered Securities. The Register shall be in written form or any other
form capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
<PAGE>
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 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 Registered Securities of the same series, of any
authorized denominations, of a like aggregate principal amount and tenor and
with like terms and conditions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
(b) Unless otherwise specified as contemplated by Section 3.1, to the
extent permitted by law, at the option of the Holder, Bearer Securities of a
series may be exchanged for Registered Securities (if the Securities of such
series are issuable in registered form) or Bearer Securities (if Bearer
Securities of such series are issuable in more than one denomination and such
changes are permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 9.2,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case any Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
<PAGE>
payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture. The Company shall
execute, and the Trustee shall authenticate and deliver, the Registered Security
or Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Securities in effect at the time of such
exchange.
(c) Except as otherwise specified pursuant to Section 3.1, in no
event may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) If the Company shall establish pursuant to Section 3.1 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Securities in global form, then the Company shall execute
and the Trustee shall, in accordance with Section 3.3 and the Company Order with
respect to such series, authenticate and deliver one or more Securities in
global form in temporary or definitive form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more
Securities in global form, (ii) shall be registered in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, and (iii) shall bear a legend substantially to the following effect:
"This Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary, unless and until
this Security is exchanged in whole or in part for Securities in definitive
form."
Notwithstanding any other provision (other than the provisions set
forth in the seventh and eighth paragraphs of this Section) of this Section,
unless and until it is exchanged in whole or in part for Securities in
certificated form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
<PAGE>
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the issuer receives such notice or becomes aware of
such ineligibility, the Company's election pursuant to Section 3.1 shall no
longer be effective with respect to the Securities of such series and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
The Company may at any time in its sole discretion determine that
Securities of a series issued in global form shall no longer be represented by
such a Security or Securities in global form. In such event, the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge:
(i) to each person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor, of
any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are 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.
<PAGE>
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the Registrar
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to those of the Company, the Registrar and the
Trustee requiring such written instrument of transfer 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
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities of any particular series and tenor for a period
beginning at the opening of business 15 days before any selection for redemption
of Securities of such series and of like tenor and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
Section 3.6. REPLACEMENT SECURITIES. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a replacement Registered Security, if such surrendered Bearer Security
was a Registered Security, or a replacement Bearer Security with coupons
corresponding to the coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series, principal amount
and Stated Maturity, containing identical terms and provisions and bearing a
number not contemporaneously Outstanding if the Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen coupon, and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
<PAGE>
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series, principal amount and Stated Maturity,
containing identical terms and provisions and bearing a number not
contemporaneously Outstanding, if the Trustee's requirements are met.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; PROVIDED, HOWEVER, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of such
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a)
Unless otherwise provided as contemplated by Section 3.1, interest, if any, on
any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; PROVIDED, HOWEVER,
that, at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) to the extent specified as contemplated by
Section 3.1, by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
<PAGE>
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount, if any, on Bearer
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing provided that any such instruction for payment in the United States does
not cause any Bearer Security to be treated as a "registration-required
obligation" under the United States law and regulations. The interest, if any,
on any temporary Bearer Security shall be paid, as to any installment of
interest evidenced by a coupon attached thereto, only upon presentation and
surrender of such coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on a
Bearer Security or coupon shall become due, the payment of the full amount so
payable at the office or offices of all the Paying Agents outside the United
States is illegal or effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such amount in Dollars,
then the Company may instruct the Trustee to make such payments at a Paying
Agent located in the United States, provided that provision for such payment in
the United States would not cause such Bearer Security to be treated as a
"registration-required obligation" under the United States law and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on any Registered Security of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest in this clause (1) 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 in writing 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
<PAGE>
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address as
it appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a specified date 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 (2), such manner of payment
shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.6
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
Section 3.8. PERSONS DEEMED OWNERS. Prior to and at the time of due
presentment of any Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any Holder, or upon his
<PAGE>
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Security or
coupon.
None of the Company, the Trustee or any Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form, or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. Notwithstanding the foregoing, with
respect to any Security in global form, nothing herein shall prevent the Company
or the Trustee, or any agent of the Company or the Trustee, from giving effect
to any written certification, proxy or other authorization furnished by any
Depositary (or its nominee), as a Holder, with respect to such Security in
global form or impair, as between such Depositary and Owners of beneficial
interests in such Security in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Security in global form.
The Company shall have the right to require a Holder, in connection
with the payment of the principal of, premium, if any, and interest, if any, on
any Security, to certify information to the Company or, in the absence of such
certification, the Company will be entitled to rely on any legal presumption to
enable the Company to determine its duties and liabilities, if any, to deduct or
withhold taxes, assessments or governmental charges for such payment.
Section 3.9. CANCELLATION. The Company at any time may deliver to the
Trustee for cancellation any Securities or coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities or coupons previously
authenticated hereunder which the Company has not issued, and all Securities or
coupons so delivered shall be promptly cancelled by the Trustee. The Registrar
and any Paying Agent shall forward to the Trustee any Securities and coupons
surrendered to them for replacement, for registration of transfer, or for
exchange or payment. The Trustee shall cancel all Registered Securities and
matured coupons surrendered for replacement, for registration of transfer, or
for exchange, payment, redemption or cancellation and may dispose of cancelled
Securities and coupons and issue a certificate of destruction to the Company.
All Bearer Securities and unmatured coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be cancelled or held
for reissuance. Bearer Securities and unmatured coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.5
or in replacement of mutilated, lost stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related coupons pursuant to Section 3.6. All Bearer Securities and
unmatured coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation, except as expressly permitted by the terms of Securities for any
particular series or as permitted pursuant to the terms of this Indenture. All
cancelled Securities and coupons held by the Trustee shall be delivered to the
<PAGE>
Company upon Company Request. The acquisition of any Securities or coupons by
the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Securities or coupons are
surrendered to the Trustee for cancellation. Definitive Securities in global
form shall not be destroyed until exchanged in full for definitive Securities in
certificated form or until payment thereon is made in full.
Section 3.10. COMPUTATION OF INTEREST. Except as otherwise specified
as contemplated by Section 3.1, (i) interest on any Securities that bear
interest at a fixed rate shall be computed on the basis of a 360-day year of
twelve 30-day months and (ii) interest on any Securities that bear interest at a
variable rate shall be computed on the basis of the actual number of days in an
interest period divided by 360.
Section 3.11. CURRENCY AND MANNER OF PAYMENT IN RESPECT OF
SECURITIES.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of, premium, if any, and interest, if any, on
any Registered or Bearer Security of such series will be made in the currency or
currencies or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 3.11
may be modified or superseded pursuant to Section 3.1 with respect to any
Securities. For all purposes of this Indenture, currency units shall include any
composite currency.
(b) It may be provided pursuant to Section 3.1, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.1, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article 4 or with respect to which a
notice of redemption has been given by the Company). Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee (or any applicable Paying Agent) not later than the close of business on
the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant currency or currency unit as provided in Section
3.11(a). The Trustee (or the applicable Paying Agent) shall notify the Exchange
<PAGE>
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written decision.
(c) If the election referred to in paragraph (b) above has been
provided for with respect to any Registered Securities of a series pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent shall deliver to the Company a written
notice specifying, in the currency or currencies or currency unit or units in
which Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.1, and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the Trustee (or the
applicable Paying Agent) an Exchange Rate Officer's Certificate in respect of
the Dollar, Foreign Currency or Currencies, ECU or other currency unit payments
to be made on such date. Unless otherwise specified pursuant to Section 3.1, the
Dollar, Foreign Currency or Currencies, ECU or other currency unit amount
receivable by Holders of Registered Securities who have elected payment in a
currency or currency unit as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Market Exchange Rate in effect on
the second Business Day (the "Valuation Date") immediately preceding each
payment date, and such determination shall be conclusive and binding for all
purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
ECU or any other currency unit in which any of the Securities are denominated or
payable otherwise than pursuant to an election provided for pursuant to
paragraph (b) above, then, with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
be the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.1, the Dollar amount
to be paid by the Company to the Trustee or any applicable Paying Agent and by
the Trustee or any applicable Paying Agent to the Holders of such Securities
with respect to such payment date shall be determined, in the case of a Foreign
Currency other than a currency unit, on the basis of the Dollar Equivalent of
the Foreign Currency or, in the case of a Foreign Currency that is a currency
<PAGE>
unit, on the basis of the Dollar Equivalent of the Currency Unit, in each case
as determined by the Exchange Rate Agent in the manner provided in paragraph (f)
or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the Holder
of a Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
are provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would have been made
in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.11 (but, subject to any contravening
valid election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, becoming the currency or currency unit, as
applicable, of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency "shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting an official unit of the
specified Foreign Currency into Dollars at the Market Exchange Rate on the
Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and, subject to the provisions of paragraph (h)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency (as each such term is defined in paragraph (h)
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.11 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
"Election Date" shall mean the Regular Date for the applicable series
of Registered Securities as specified pursuant to Section 3.1 by which the
written election referred to in Section 3.11(b) may be made.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which such Component
<PAGE>
Currency represented in the relevant currency unit, including, but not limited
to, ECU, on the Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not
limited to, ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocable binding upon the
Company, the Trustee (and any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to ECU
or any other currency unit in which Securities are denominated or payable, the
Company will promptly give written notice thereof to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent) will promptly thereafter give notice in the manner provided
in Section 1.6 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the event
the Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
<PAGE>
the Company will similarly give written notice to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.12. APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 3.1, if and so
long as the Securities of any series (i) are denominated in a currency or
currency unit other than Dollars or (ii) may be payable in a currency or
currency unit other than Dollars, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least on Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the necessary foreign
exchange determinations at the time and in the manner specified pursuant to
Section 3.11 for the purpose of determining the applicable rate of exchange and,
if applicable, for the purpose of converting the issued currency or currencies
or currency unit or units into the applicable payment currency or currency unit
for the payment of principal, premium, if any, and interest, if any, pursuant to
Section 3.11.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company shall promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed with
respect to the Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 3.1, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular series that
are originally issued by the Company on the same date and that are initially
denominated and/or payable in the same currency or currencies or currency unit
or units).
Section 3.13. 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 addition to the other identification numbers
printed on the Securities) 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
<PAGE>
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Section 3.14. JUDGMENTS. If for the purpose of obtaining a judgment
in any court with respect to any obligation of the Company hereunder or under
any Security, it shall become necessary to convert into any other currency any
amount in the currency due hereunder or under such Security, then such
conversion shall be made at the Market Exchange Rate as in effect on the date
the Company shall make payment to any Person in satisfaction of such judgment.
If pursuant to any such judgment, conversion shall be made on a date other than
the date payment is made and there shall occur a change between such Market
Exchange Rate and the Market Exchange Rate as in effect on the date of payment,
the Company agrees to pay such additional amounts (if any) as may be necessary
to ensure that the amount paid is equal to the amount in such other currency
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such
Security. Any amount due from the Company under this Section 3.14 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Security.
In no event, however, shall the Company be required to pay more in the currency
or currency unit due hereunder or under such Security at the Market Exchange
Rate as in effect when payment is made than the amount of currency stated to be
due hereunder or under such Security so that in any event the Company's
obligations hereunder or under such Security will be effectively maintained as
obligations in such currency, and the Company shall be entitled to withhold (or
be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion over the amount due and payable on the date of
payment or distribution.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. TERMINATION OF COMPANY'S OBLIGATIONS UNDER THE
INDENTURE. Except as otherwise provided as contemplated by Section 3.1, this
Indenture shall upon Company Request cease to be of further effect with respect
to Securities of or within any series and any coupons appertaining thereto
(except as to any surviving rights of registration of transfer or exchange of
such Securities and replacement of such Securities which may have been lost,
stolen or mutilated as herein expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such Securities and
any coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other than (i)
such coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities, and maturing after such
exchange, surrender of which is not required or has been waived as
provided in Section 3.5, (ii) such Securities and coupons which
<PAGE>
have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) such coupons
appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of which
has been waived as provided in Section 10.6 and (iv) such
Securities and coupons for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i)
and (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which the Securities of such
series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal, premium, if
any, and interest, if any, with respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 6.9, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 9.3 shall survive. If, after
the deposit referred to in Section 4.1 has been made, (x) the Holder of a
Security is entitled to, and does, elect pursuant to Section 3.11(b), to receive
<PAGE>
payment in a currency other than that in which the deposit pursuant to Section
4.1 was made, or (y) if a Conversion Event occurs with respect to the currency
in which the deposit was made or elected to be received by the Holder pursuant
to Section 3.11(b), then the indebtedness represented by such Security shall be
fully discharged to the extent that the deposit made with respect to such
Security shall be converted into the currency in which such payment is made.
Section 4.2. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, if any, and any interest for whose payment such money
has been deposited with or received by the Trustee. Such money need not be
segregated from other funds except to the extent required by law and except that
the Trustee shall segregate moneys, funds and accounts held by the Trustee in
one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units.
Section 4.3. APPLICABILITY OF DEFEASANCE PROVISIONS; COMPANY OPTION
TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.1
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.4 or (ii) covenant defeasance of the Securities
of or within a series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.6
through 4.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to such Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 4.4 (if applicable) or Section 4.5
(if applicable) be applied to such Securities and any coupons appertaining
thereto upon compliance with the conditions set forth below in this Article.
Section 4.4. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
the Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 4.6 are
satisfied (hereinafter "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.7 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall on Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive, solely from the
trust funds described in Section 4.6(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
<PAGE>
if any, on such Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 6.10, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (iv) this Article 4. Subject to
compliance with this Article 4, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 4.5 with
respect to such Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 4.5. COVENANT DEFEASANCE. Upon the Company's exercise of the
option specified in Section 4.3, applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4 and 9.5, and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4 and 9.5, or such other covenant,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, provision, covenant,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of any reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 5.1(3) or 5.1(6) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 4.6. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
Section 6.12 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Section 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in an amount (in such currency,
currencies or currency unit or units in which such Securities and any coupons
appertaining thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the option of Holders,
Government Obligations which through the payment of principal and interest in
<PAGE>
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities and any coupons appertaining thereto on the
Maturity of such principal or installment of principal or interest and (y) any
mandatory sinking fund payments applicable to such Securities on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto. Before such
a deposit the Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article 10
which shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Default or Event under Section 5.1(4) or 5.1(5) with respect
to such Securities and any coupons appertaining thereto shall have occurred and
be continuing during the period commencing on the date of such deposit and
ending on the 91st day after such date (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
stating that (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amounts and in the same manner and at the same times, as would have been
the case if such deposit, defeasance and discharge had not occurred.
(e) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel
to the effect that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
<PAGE>
precedent to the defeasance under Section 4.4 or the covenant defeasance under
Section 4.5 (as the case may be) have been complied with.
(g) Such defeasance or covenant shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith as contemplated by Section 3.1.
Section 4.7. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1, including the proceeds thereof) deposited with the Trustee pursuant
to Section 4.6 in respect of any Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any. Such money need not be
segregated from other funds except to the extent required by law and except that
the Trustee shall segregate moneys, funds and accounts held by the Trustee in
one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 4.6 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Securities.
Unless otherwise specified with respect to any Security pursuant to
Section 3.1, if, after a deposit referred to in Section 4.6(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.11(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.6(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.11(d)
or 3.11(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of,
premium, if any, and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time specified below in
the case of any such election) the amount or other property deposited in respect
of such Security into the currency or currency unit in which such Security
becomes payable as a result of such election or Conversion Event based on the
applicable Market Exchange Rate for such currency or currency unit in effect on
the second Business Day prior to each payment date or, in the case of the
occurrence and continuance of a Conversion Event with respect to such currency
or currency unit, based on the applicable Market Exchange Rate for such currency
or currency unit which is in effect at the time of the Conversion Event.
<PAGE>
Section 4.8. TRANSFERS AND DISTRIBUTION AT COMPANY REQUEST. To the
extent permitted by the Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 76, as amended or interpreted by the
Financial Accounting Standards Board from time to time, or any successor thereto
("Standard No. 76"), or to the extent permitted by the Commission, the Trustee
shall, from time to time, take one or more of the following actions as specified
in a Company Request.
(a) Retransfer, assign and deliver to the Company any securities
deposited with the Trustee pursuant to Section 4.6(a), provided that the Company
shall, in substitution therefor, simultaneously transfer, assign, and deliver to
the Trustee other Government Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities; and
(b) The Trustee (and any Paying Agent) shall promptly pay to the
Company, upon Company Request, any excess money or securities held by them at
any time, including, without limitation, any assets deposited with the Trustee
pursuant to Section 4.6(a) exceeding those necessary for the purposes of Section
4.6(a).
The Trustee shall not take the actions described in subsections (a) and (b) of
this Section 4.8 unless it shall have first received a written report of Ernst &
Young L.L.P., or another nationally recognized independent public accounting
firm (i) expressing their opinion that the contemplated action is permitted by
Standard No. 76 or the Commission, for transactions accounted for as
extinguishment of debt under the circumstances described in paragraph 3.c of
Standard No. 76 or any successor provision and (ii) verifying the accuracy,
after giving effect to such action or actions, of the computations which
demonstrate that the amounts remaining to be earned on the Government
Obligations deposited with the Trustee pursuant to Section 4.6(a) will be
sufficient for purposes of Section 4.6(a).
Section 4.9. REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 4.7 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities of the series with respect to which such money
was deposited shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 4 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 4.7; PROVIDED,
however, that if the Company makes any payment of principal of (or premium, if
any, on) or interest on any Securities of any series following the reinstatement
of the Company's obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent with respect to such Securities.
<PAGE>
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. EVENTS OF DEFAULT. An "Event of Default" occurs with
respect to the Securities of any series if (regardless of the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series as
specified pursuant to Section 3.1(b)(16) when the same becomes due and
payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
any premium on any Security of that series when the same becomes due and
payable at its Maturity or on redemption or otherwise, or in the payment
of a mandatory sinking fund payment when and as due by the terms of the
Securities of that series;
(3) the Company defaults in the performance of, or breaches, any
covenant or warranty of the Company in this Indenture with respect to
any Security of that series (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and such default or breach continues for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry
of an order for relief against it in an involuntary case, (C) consents
to the appointment of a Custodian of it or for all or substantially all
of its property, or (D) makes a general assignment for the benefit of
its creditors;
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in
any involuntary case, (B) appoints a Custodian of the Company or for all
or substantially all of its property, or (C) orders the liquidation of
the Company and the order or decree remains unstayed and in effect for
90 days; or
<PAGE>
(6) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 5.2. ACCELERATION; RESCISSION AND ANNULMENT. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice to the Company (and, if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable and upon any such declaration such principal
(or, in the case of Original Issue Discount Securities or Indexed Securities,
such specified amount) shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if all
existing Defaults and Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Section 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 10 days, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due pursuant
to the terms of the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest, if any,
and, to the extent that payment of such interest shall be legally enforceable,
<PAGE>
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or coupons, if any,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and coupons, if
any, and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities and coupons, if any, wherever situated.
If an Event of Default with respect to Securities 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 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings, or any voluntary or involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, relative to the Company or any other
obligor upon the Securities and coupons, if any, of a particular series or the
property of the Company or of such other obligor, the Trustee (irrespective of
whether the principal of such Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in
accordance with Section 5.2) (and premium, if any) and interest owing
and unpaid in respect of the Securities and any coupons of such series
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders of
such Securities and any coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
<PAGE>
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.9.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
and any coupons of such series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name, as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities or any coupons in respect of
which such judgment has been recovered.
Section 5.6. DELAY OR OMISSION NOT WAIVER. No delay or omission by
the Trustee or any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of Default. Every right
and remedy given by this Indenture or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
Section 5.7. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
series by notice to the Trustee may waive on behalf of the Holders of all
Securities of such series a past Default or Event of Default with respect to
such series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security of
such series or any coupon appertaining thereto or (ii) in respect of a covenant
or provision hereof which pursuant to Section 8.2 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
adversely affected. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.8. CONTROL BY MAJORITY. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; PROVIDED, HOWEVER, that (i)
the Trustee may refuse to follow any direction that conflicts with law or this
<PAGE>
Indenture, (ii) subject to Section 6.1, the Trustee may refuse to follow any
direction that is unduly prejudicial to the rights of the Holders of Securities
of any such series not consenting, or that would in the good faith judgment of
the Trustee have a substantial likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.9. LIMITATION ON SUITS BY HOLDERS. No Holder of any
Security of any series or any related coupons shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a 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 indemnity
satisfactory to the Trustee against any loss, cost, liability or expense
to be, or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such written
request.
No one or more 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. For the protection and
enforcement of the provisions of this Section 5.9, each and every Holder of
Securities or any coupons of any series and the Trustee for such series shall be
entitled to such relief as can be given at law or in equity.
Section 5.10. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, but subject to Section 9.2, the right of
any Holder of a Security or coupon to receive payment of principal of, premium,
if any, and, subject to Sections 3.5 and 3.7, interest on such Security, on or
after the respective due dates expressed in such Security (or, in case of
redemption, on the Redemption Dates) and the right of any Holder of a coupon to
receive payment of interest due as provided in such coupon, or, subject to
<PAGE>
Section 5.9, to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 5.11. APPLICATION OF MONEY COLLECTED. Subject to Article 12,
if the Trustee collects any money pursuant to this Article, it shall pay out the
money 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, premium, if any,
or interest, 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 Trustee for amounts due under Section 6.9;
SECOND: to Holders of Securities and coupons in respect of which
or for the benefit of which such money has been collected for amounts
due and unpaid on such Securities for principal of, premium, if any, and
interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
THIRD: to the Person or Persons entitled thereto.
Section 5.12. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. 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 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company.
<PAGE>
Section 5.15. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. CERTAIN DUTIES AND RESPONSIBILITIES. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. RIGHTS OF TRUSTEE. Subject to the provisions of the
Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note 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 (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein), 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 Officer's Certificate or Opinion of Counsel.
(d) The Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
<PAGE>
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note 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.
(g) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care by its hereunder.
(h) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
Section 6.3. TRUSTEE MAY HOLD SECURITIES. The Trustee, any
Authenticating Agent, any Paying Agent, any Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company, an Affiliate or
Subsidiary with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Registrar or such other agent.
Section 6.4. MONEY HELD IN TRUST. Money held by the Trustee or any
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required by law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder except as
otherwise set forth in this Indenture or as otherwise agreed with the Company.
Section 6.5. TRUSTEE'S DISCLAIMER. The recitals contained herein and
in the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and neither the Trustee nor the
Authenticating Agent assumes any responsibility for their correctness. Neither
the Trustee nor the Authenticating Agent makes any representation as to the
validity or adequacy of this Indenture, the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.
<PAGE>
Section 6.6. NOTICE OF DEFAULTS. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to
the Trustee, the Trustee shall, within 90 days after it occurs, transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all uncured Defaults known to it; PROVIDED, HOWEVER, that, in the case
of a Default in payment on the Securities of any series, the Trustee may
withhold the notice if and so long as the board of directors, the executive
committee or a committee of its Responsible Officers in good faith determines
that withholding such notice is in the interests of the Holders of Securities of
such series; PROVIDED FURTHER that, in the case of any Default or breach of the
character specified in Section 5.1(3) with respect to the Securities and coupons
of such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof.
Section 6.7. REPORTS BY TRUSTEE TO HOLDERS. (a) Within 60 days after
each May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by Section
313(a) of the Trust Indenture Act. The Trustee also shall comply with Section
313(b) and (d) of the Trust Indenture Act and shall transmit to the Holders, in
the manner and to the extent provided in said Section 313(c) of the Trust
Indenture Act, such other reports, if any, as may be required pursuant to the
Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, 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 6.8. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession of the Registrar, the Company or any of its Paying
Agents other than the Trustee as to the names and addresses of Holders of
Securities of each such series. If there are Bearer Securities of any series
Outstanding, even if the Trustee is the Registrar, the Company shall furnish to
the Trustee such a list containing such information with respect to Holders of
such Bearer Securities only.
Section 6.9. COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time such
compensation as shall be agreed between the Company and the Trustee for all
services rendered by the Trustee hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon its request for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of its
duties under this Indenture, except any such expense as may be attributable to
<PAGE>
its negligence or bad faith. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it harmless
against, any loss, liability or expense incurred by it without negligence or bad
faith on its part arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest, if any, on particular
Securities.
(e) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(4) or Section
5.1(5), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
(f) The provisions of this Section shall survive the termination of
this Indenture.
Section 6.10. REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the appointment of
a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
<PAGE>
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act 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 310(a)
of the Trust Indenture Act and shall fail to resign after written
request therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge of
the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act,
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 resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to Securities of one or more
series, the Company shall promptly appoint a successor Trustee with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of such Securities and accepted
appointment in the manner required by Section 6.11, the resigning or retiring
Trustee, or 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.
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
<PAGE>
accepting such appointment. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee, without
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 (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, such 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, (ii)
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
(iii) 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 the Trust Indenture Act.
(e) 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
<PAGE>
in the manner provided for notices to the Holders of Securities in Section 1.6.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.12. ELIGIBILITY; DISQUALIFICATION. There shall at all times
be a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $50,000,000 (or having a combined capital and surplus in
excess of $5,000,000 and the obligations of which, whether now in existence or
hereafter incurred, are fully and unconditionally guaranteed by a corporation
organized and doing business under the laws of the United States, any State or
Territory thereof or of the District of Columbia and having a combined capital
and surplus of at least $50,000,000). If the Trustee or such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such the Trustee or 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. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall comply with the relevant provisions
thereof.
Section 6.13. 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 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
<PAGE>
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements of
such 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 further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such 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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated:
[_______________________________]
as Trustee
By_______________________________
as Authenticating Agent
By_______________________________
Authorized Signatory
Sections 6.2, 6.3, 6.5 and 6.9 shall be applicable to any Authenticating Agent.
Section 6.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE
COMPANY. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
fifteen Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
Section 6.16. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities or the coupons, if any), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
PERMITTED. The Company may merge or consolidate with or into any other
corporation or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its assets to any Person, if (i)(A) in the case of a merger
or consolidation, the Company is the surviving corporation or (B) in the case of
<PAGE>
a merger or consolidation where the Company is not the surviving corporation and
in the case of any such sale, conveyance or other disposition, the resulting,
successor or acquiring Person is a corporation organized and existing under the
laws of the United States, any State or the District of Columbia and such
corporation expressly assumes by supplemental indenture all the obligations of
the Company under the Securities and any coupons appertaining thereto and under
this Indenture, (ii) immediately thereafter, giving effect to such merger or
consolidation, or such sale, conveyance, transfer, lease or other disposition
(including, without limitation, any indebtedness directly or indirectly incurred
or anticipated to be incurred in connection with or in respect of such
transactions), no Default or Event of Default shall have occurred and be
continuing and (iii) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger or
consolidation, or such sale, conveyance, transfer, lease or other disposition,
complies with this Article and that all conditions precedent relating to such
transaction have been complied with as herein provided.
Section 7.2. SUCCESSOR CORPORATION SUBSTITUTED. Upon any merger or
consolidation of the Company with or into any other corporation or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of
the assets of the Company to any other Person, the successor corporation formed
by such consolidation or into which the Company is merged or the Person 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 a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. 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 reasonably satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with respect to all
or any series of Securities; or
<PAGE>
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Bearer Securities (including, without limitation, to provide that Bearer
Securities may be registrable as to principal only) or to facilitate the
issuance of Securities in global form, PROVIDED that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture, PROVIDED that any such addition, change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision and as to which such
supplemental indenture would apply; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.10; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any; or
(10) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interest
of the Holders of Securities of any series in any material respect, or
to cure any ambiguity or correct any mistake; or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Article 4,
PROVIDED that any such action shall not adversely affect the interests
of the Holders of Securities of such series or any other series of
Securities or any related coupons in any material respect.
Section 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With
the written consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any other indenture
<PAGE>
supplemental hereto or to modify the rights of the Holders of Securities of each
such series; PROVIDED, HOWEVER, that without the consent of the Holder of each
Outstanding Security affected thereby, an amendment under this Section may not:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the coin or currency in which any
Securities or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
or
(4) make any change in Section 5.7 or this Section 8.2 except to
increase any percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holders of each Outstanding Security affected thereby.
A supplemental indenture that 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 that 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.
Upon the request of the Company, accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture. It is not necessary under this Section 8.2 for the
Holders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
Section 8.3. COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the requirements
of the Trust Indenture Act as then in effect.
<PAGE>
Section 8.4. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 8.5. 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 and of any coupon appertaining
thereto shall be bound thereby.
Section 8.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities, including any coupons, 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 including any coupons of any series
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.
Section 8.7. NOTICE OF SUPPLEMENTAL INDENTURE. Promptly after the
execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 8.2, the Company shall transmit, in the manner and
to the extent provided in Section 1.6, to all Holders of any series of the
Securities affected thereby, a notice setting forth in general terms the
substance of such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST, IF
ANY. The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture. An installment of principal or interest
shall be considered paid on the date it is due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment.
Unless otherwise specified as contemplated by Section 3.1 with respect to any
series of Securities or except as otherwise provided in Section 3.7, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. If so provided
<PAGE>
in the terms of any series of Securities established as provided in Section 3.1,
the interest, if any, due in respect of any temporary Securities in global form
or definitive Security in global form, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such
Security, shall be payable only upon presentation of such Security to the
Trustee for notation thereon of the payment of such interest.
Section 9.2. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issued as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, (i) subject
to any laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, where
Securities of that series and related coupons may be presented and surrendered
for payment; PROVIDED, HOWEVER, that if the Securities of that series are listed
on any stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in any required city located outside the United States, as the case
may be, so long as the Securities of that series are listed on such exchange,
and (ii) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose of the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
<PAGE>
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind any such designation; PROVIDED, HOWEVER, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. MONEY FOR SECURITIES TO BE HELD IN TRUST; UNCLAIMED
MONEY. 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, premium, if any, or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing 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, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities;
(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; and
(4) acknowledge, accept and agree to comply in all respects with
the provisions of this Indenture relating to the duties, rights and
disabilities of the Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
<PAGE>
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of any principal, premium, if any,
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security and coupon,
if any, shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 9.4. CORPORATE EXISTENCE. Subject to Article 7, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; PROVIDED that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company, if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company and does not materially adversely affect the ability of the
Company to operate its business or to fulfill its obligations hereunder.
Section 9.5. REPORTS BY THE COMPANY. The Company covenants:
(a) to file with the Trustee, within 30 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 it 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; or if it is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a Security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by it
with the conditions and covenants contained or provided for in this Indenture,
as may be required from time to time by such rules and regulations; and
<PAGE>
(c) to transmit to all Holder of Securities, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by it pursuant to subsections (a) and
(b) of this Section 9.5, as may be required by rules and regulations prescribed
from time to time by the Commission.
Section 9.6. ANNUAL REVIEW CERTIFICATE; NOTICE OF DEFAULT. The
Company covenants and agrees to deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, a brief certificate from the
principal executive officer, principal financial officer, or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of Section 9.7,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. The Company shall file with
the Trustee written notice of occurrence of any Event of Default within thirty
Business Days of its becoming aware of any such Event of Default.
Section 9.7. WAIVER OF CERTAIN COVENANTS AND CONDITIONS. The Company
may omit in any particular instance to comply with any term, covenant, provision
or condition set forth in Sections 9.4 through 9.6, inclusive, or established
pursuant to Section 3.1 with respect to the Securities of any series if before
or after the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waiver such compliance in such instance or generally waive
compliance with such term, covenant, provision or condition, but no such waiver
shall extend to or affect such term, covenant, provision 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 term, covenant, provision or condition shall remain in full force and
effect.
ARTICLE 10
REDEMPTION
Section 10.1. APPLICABILITY OF ARTICLE. Securities (including
coupons, if any) of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Securities, including coupons, if any, shall be
evidenced by a Board Resolution or, in the case of an election made pursuant to
authority granted in a Board Resolution, an Officer's Certificate. In the case
of any redemption at the election of the Company of less than all the Securities
of coupons, if any, of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
to the tenor of the Securities to be redeemed. In the case of any redemption of
<PAGE>
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
Section 10.3. SELECTION OF SECURITIES TO BE REDEEMED. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including coupons, if any) of a series with the same original issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee, not
more than 45 days prior to the Redemption Date, shall select the Securities of
the series to be redeemed in such manner as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection from Securities of the series
that are Outstanding and that have not previously been called for redemption and
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities including coupons, if any, of that series
or any integral multiple thereof) of the principal amount of Securities,
including coupons, if any, of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected by the Trustee
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including coupons,
if any) redeemed or to be redeemed only in part, to the portion of the principal
amount of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4. NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
<PAGE>
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to
the Paying Agent to collect the redemption price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished; and
(10) CUSIP number (if any).
Notice of redemption of Securities to be redeemed 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 10.5. DEPOSIT OF REDEMPTION PRICE. On or prior to 12:00 Noon
New York City 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 9.3) an amount of
money in the currency or currencies (including currency units or composite
currencies) in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.1 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (unless
the Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
<PAGE>
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; PROVIDED, HOWEVER, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of coupons for such interest; and PROVIDED FURTHER that, unless otherwise
specified as contemplated by Section 3.1, installments of interest on Registered
Securities whose Stated Maturity is prior to the Redemption Date shall be
payable to the Holder 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 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
PROVIDED, HOWEVER, that interest represented by coupons shall be payable only at
an office or agency located outside of the United States (except as otherwise
provided pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part at any 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), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series and of like tenor with the same form and the same Maturity in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal of the Security surrendered; provided, however, that
the Depositary need not surrender a Security in global form for a partial
redemption and may be authorized to make a notation on such Security of such
partial redemption. In the case of a partial redemption of a Security in global
form, the Depositary, and in turn, the participants in the Depositary, shall
have the responsibility to select any Securities to be redeemed by random lot.
<PAGE>
ARTICLE 11
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less
than 60 days prior to each sinking fund payment date for any series of
Securities (unless a shorter period shall be satisfactory to the Trustee), the
Company will deliver to the Trustee an Officer's Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 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 10.3 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
<PAGE>
ARTICLE 12
SUBORDINATION OF SECURITIES
Section 12.1 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS. All
Securities and any coupons appertaining thereto issued under this Indenture
shall be issued subject to the following provisions and each Holder of any
Security or any coupon whether upon original issue or upon transfer or
assignment thereof accepts and agrees to be bound by such provisions.
All Securities and any coupons appertaining thereto issued hereunder
shall, to the extent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of all Senior
Indebtedness. "Senior Indebtedness" means (i) the principal of, premium, if any,
interest, if any, and other amounts in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business, (iv) all obligations of the Company for the
reimbursement on any letter of credit, bankers acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise, and
(vi) all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company) except for (1) any
such indebtedness or other obligation that is by its terms subordinated to or
PARI PASSU with the Securities, (2) any indebtedness between or among the
Company and its affiliates, including all other debt securities and guarantees
in respect of those debt securities, initially issued to any trust, or a trustee
of such trust, partnership or other entity affiliated with the Company that,
directly or indirectly, is a financing vehicle of the Company (a "financing
entity") in connection with the issuance by such financing entity of preferred
securities or other securities that rank PARI PASSU with, or junior to, the
Securities and (3) the Company's guarantee of certain payments under the 8 1/2%
Convertible Trust Originated Preferred Securities issued by Continental Airlines
Finance Trust and the Company's 8 1/2% Convertible Subordinated Deferrable
Interest Debentures due 2020. Such Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of the subordination provisions
herein irrespective of any amendment, modification or waiver of any term of such
Senior Indebtedness. The payment of the principal of, premium, if any, and
interest, if any, on the Securities and coupons shall rank senior in right of
payment to the Company's guarantee of certain payments under the 8-1/2%
Convertible Trust Originated Preferred Securities issued by Continental Airlines
Finance Trust and the Company's 8-1/2% Convertible Subordinated Deferrable
Interest Debentures due 2020.
All provisions of this Article 12 shall be subject to Section 12.13.
<PAGE>
Section 12.2. NO PAYMENTS IN CERTAIN CIRCUMSTANCES; PAYMENT OVER OF
PROCEEDS UPON DISSOLUTION, ETC. No payment on account of principal of, premium,
if any, or interest on, or redemption or repurchase of, the Securities or any
coupons appertaining thereto or deposit pursuant to Article 4 shall be made if,
at the time of such payment or immediately after giving effect thereto: (i)
there shall exist a default in the payment of principal of, premium, if any,
sinking funds or interest (including a default under any repurchase or
redemption obligations) or other amounts with respect to any Senior
Indebtedness, or (ii) there shall have occurred an event of default (other than
a default in the payment of principal, premium, if any, sinking funds or
interest) with respect to any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding, permitting the holders thereof
to accelerate the maturity thereof and written notice of such occurrence shall
have been given to the Company and to the Trustee under this Indenture by the
holder or holders of such Senior Indebtedness and such event of default shall
not have been cured or waived or shall not have ceased to exist. Notwithstanding
the foregoing, the Company may make, and the Trustee may receive and shall
apply, any payment in respect of the Securities (for principal, premium, if any,
or interest or repurchase) if such payment was made prior to the occurrence of
any of the contingencies specified in clauses (i) and (ii) above.
Upon (i) any acceleration of the principal amount due on the
Securities or (ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution, winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, premium, if any, sinking
fund and interest or other amounts due or to become due upon all Senior
Indebtedness shall first be paid in full, or payment thereof provided for in
money or money's worth in accordance with its terms, before any payment is made
on account of the principal of, premium, if any, or interest on, or repurchase
of, the indebtedness evidenced by the Securities or any coupon appertaining
thereto, and upon any such dissolution or winding up or liquidation or
reorganization any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of
the Securities or any coupons appertaining thereto or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders of
the Securities or any coupons appertaining thereto or by the Trustee under this
Indenture if received by them or it, as the case may be, directly to the holders
of Senior Indebtedness (pro rata to each such holder on the basis of the
respective amounts of Senior Indebtedness held by such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the Holders of the Securities or any coupons
appertaining thereto or to the Trustee under this Indenture.
In the event that, contrary to the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness is paid in full or provision made for
such payment, in accordance with its terms, such payment or distribution shall
<PAGE>
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness have been issued, as
their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all such
Senior Indebtedness in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities and any coupons (together with the holders of any
other indebtedness of the Company which is subordinated in right of payment to
the payment in full of all Senior Indebtedness, which is not subordinated in
right of payment to the Securities and which by its terms grants such right of
subrogation to the holders thereof) shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets of
the Company made on the Senior Indebtedness until the principal of, premium, if
any, and interest, if any, on, or repurchase of, the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to
the holders of Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities and any coupons appertaining thereto or the
Trustee would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by the Holders of the Securities or any coupon or the Trustee,
shall, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of Securities and coupons, be deemed to be a
payment by the Company to the holders of or on account of Senior Indebtedness,
it being understood that the provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities and coupons, on the one hand, and the holders of Senior Indebtedness,
on the other hand.
Section 12.3 OBLIGATION OF THE COMPANY UNCONDITIONAL. Nothing
contained in this Article 12 or elsewhere in this Indenture or in any Security
is intended to or shall impair, as between the Company and the Holders of the
Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of
(premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness of the Company nor,
except as expressly provided in this Article 12, shall anything herein or in the
Securities prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 12 of the holders
of Senior Indebtedness of the Company in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Nothing contained in this Article 12 or elsewhere in this Indenture
or in any Security is intended to or shall affect the obligations of the Company
to make, or prevent the Company from making, at any time except during the
pendency of any dissolution, winding up, liquidation (total or partial) or
<PAGE>
similar proceeding, and except during the continuance of any event specified in
Section 12.2 (not cured or waived), payments at any time of the principal of (or
premium, if any) or interest on the Securities.
Section 12.4. NOTICE TO TRUSTEE OF SPECIFIED EVENTS; RELIANCE ON
CERTIFICATE OF LIQUIDATING AGENT. The Company shall give prompt written notice
to the Trustee of any insolvency or bankruptcy proceeding in respect of the
Company, of any proceedings for voluntary liquidation, dissolution or other
winding up of the Company (whether or not involving insolvency or bankruptcy),
of the declaration of any Security as due and payable before its expressed
maturity, and of any event which pursuant to Section 12.2 would prevent payment
by the Company on account of the principal, premium, if any, or interest on, or
repurchase of, the Securities. The Trustee, subject to the provisions of Section
6.1, shall be entitled to assume that no such event has occurred unless the
Company, or a holder of Senior Indebtedness, or any trustee therefor, has given
such notice.
Upon any distribution of assets of the Company or payment by or on
behalf of the Company referred to in this Article, the Trustee and the Holders
of the Securities shall be entitled to rely upon any order or decree of a court
of competent jurisdiction in which any proceedings of the nature referred to in
Section 12.2 are pending, and the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities and coupons shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other Person making
any distribution to the Trustee or to the Holders of the Securities or coupons
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.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 12.5. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, but subject to the provisions of Section 6.1 as between the Holders
of Securities and coupons and the Trustee, neither the Trustee nor any Paying
Agent shall be charged with knowledge of any facts which would prohibit the
making of any payment of moneys to or by the Trustee or any such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received written
notice thereof at its Corporate Trust Office from the Company or any holder of
Senior Indebtedness or the trustee or representative of any holder of such
Senior Indebtedness on his behalf identifying the specific sections of this
Indenture involved and describing in detail the facts that would obligate the
Trustee to withhold payments to Holders of Securities; and, prior to the receipt
of any such written notice, the Trustee and any such Paying Agent shall be
<PAGE>
entitled to assume that no such facts exist. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness of the Company held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such person pending judicial determination as to the
right of such person to receive such payment.
If the Trustee or Paying Agent, as the case may be, shall not have
received, at least three Business Days prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without
limitation, the payment of the principal of, premium, if any, or the interest on
any Security) with respect to such moneys, the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee and such Paying Agent, as the case may be, shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
Section 12.6 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS. No right of any present or future
holders of any Senior Indebtedness of the Company to enforce subordination as
provided herein 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
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
Section 12.7 HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
SECURITIES. Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary to appropriate in the discretion of the Trustee to effectuate the
subordination provided in this Article 12 and appoints the Trustee his attorney
in-fact for such purpose, including, without limitation, 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 or otherwise) tending towards liquidation of the
business and assets of the Company, the timely filing of a claim for the unpaid
balance of its or his Securities in the form required in said proceedings. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceedings before the expiration of the time to file such claim or
claims, then the holders of Senior Indebtedness of the Company 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.
Section 12.8 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS. The
Trustee shall be entitled to all of the rights set forth in this Article 12 in
respect of any Senior Indebtedness of the Company at any time held by it to the
<PAGE>
same extent as any other holder of such Senior Indebtedness of the Company, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
Section 12.9. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. With respect to the holders of Senior Indebtedness of the Company
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 12, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any holder of Senior Indebtedness of the
Company if it shall mistakenly pay over or deliver to Holders of Securities or
coupons or the Company or any other Person monies or assets to which any holder
of such Senior Indebtedness shall be entitled by virtue of this Article 12 or
otherwise.
Section 12.10 ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT. The
failure to make a payment on account of principal or interest by reason of any
provision in this Article 12 shall not be construed as preventing the occurrence
of an Event of Default under Section 5.1.
Section 12.11 PAYMENT AGENT OTHER THAN THE TRUSTEE. In case at any
time any Paying Agent (including, without limitation, the Company or any
Subsidiary) other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article 12 shall in
such case (unless the context shall otherwise require) be construed as extending
to and including such Paying Agent (except the Company and its subsidiaries in
the case of Sections 12.5, 12.8 and 12.9) within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article 12 in
addition to or in place of the Trustee.
Section 12.12 TRUSTEE'S COMPENSATION NOT PREJUDICED. Nothing in this
Article 12 shall apply to amounts due to the Trustee pursuant to Section 6.9.
Section 12.13 TRUST MONEYS NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money held in trust under
Article 4 by the Trustee for the payment of principal of, premium, if any, and
interest, if any, on the Securities shall not be subordinated to the prior
payment of any Senior Indebtedness of the Company or subject to the restrictions
set forth in this Article 12 and none of the Holders shall be obligated to pay
over any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
---------------------------------------------
<PAGE>
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CONTINENTAL AIRLINES, INC., as Issuer
By_____________________________________
Title:
Attest:
_________________________________
Title:
[_________________________], as Trustee
By_____________________________________
Title:
Attest:
_________________________________
Title:
EXHIBIT 5.1
OPINION OF HUGHES HUBBARD & REED LLP
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Hughes Hubbard & Reed LLP One Battery Park Plaza
New York, New York 10004-1482
Telephone: 212-837-6000
Facsimile: 212-422-4726
</TABLE>
June 13, 1997
Continental Airlines, Inc.
2929 Allen Parkway
Houston, Texas 77019
Dear Sirs:
You have requested our opinion in connection with the Registration
Statement on Form S-3 filed by Continental Airlines, Inc. (the "Company") with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, with respect to the proposed issuance and sale by the Company of up to
$400,000,000 aggregate principal amount of debt securities of the Company (the
"Debt Securities") on terms to be determined at the time of sale. The Debt
Securities are to be issued pursuant to an Indenture in the form of Exhibit 4.1
or 4.2 (the "Indenture"), from the Company to a bank or trust company or other
corporation eligible to serve as Trustee thereunder (the "Trustee"). We have
examined such corporate records and other documents and have made such
examinations of law as we have deemed relevant.
It is our opinion that when (a) the applicable provisions of the
Securities Act of 1933, as amended, and such "Blue Sky" or state securities laws
as may be applicable shall have been complied with, (b) an application filed
pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended,
for the purpose of determining the Trustee's eligibility shall have become
effective, (c) the Indenture shall have been duly authorized, executed and
delivered by the Company and the Trustee and shall have become effective, and
(d) the Debt Securities shall have been duly authorized by the Company as
contemplated by the Indenture, subject to the terms of such Debt Securities
being otherwise in compliance with then applicable law, and duly executed,
authenticated and delivered against payment therefor, the Debt Securities will
be legally issued and binding obligations of the Company.
We hereby consent to the filing of this opinion as an exhibit to said
Registration Statement and we further consent to the use of our name in the
Registration Statement under the caption "Legal Opinions." In giving this
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ HUGHES HUBBARD & REED LLP
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<PAGE>
CONTINENTAL AIRLINES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN MILLIONS)
<TABLE>
<CAPTION>
Three Three
Months Months 4/28/93 | 1/1/93
Ended Ended through | through
3/31/97 3/31/96 1996 1995 1994 12/31/93 | 4/27/93 1992
------- ------- ------- ------- -------- -------- | ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
|
Earnings: |
Earnings (Loss) Before Income |
Taxes, Minority Interest and |
Extraordinary Items $ 124 $ 95 $ 428 $ 310 $ (651) ($52) | ($977) ($125)
Plus: |
Interest Expense (a) 42 47 165 213 241 165 | 52 153
Capitalized Interest (6) (1) (5) (6) (17) (8) | (2) (6)
Amortization of Capitalized |
Interest 1 1 3 2 1 0 | 0 0
Portion of Rent Expense |
Representative of Interest |
Expense (a) 94 89 359 360 337 216 | 117 324
------ ------ ------ ------ ------- ------ | ------ ------
255 231 950 879 (89) 321 | (810) 346
------ ------ ------ ------ ------- ------ | ------ ------
Fixed Charges: |
Interest Expense (a) 42 47 165 213 241 165 | 52 153
Portion of Rent Expense |
Representative of |
Interest Expense (a) 94 89 359 360 337 216 | 117 324
------ ------ ------ ------ ------- ------ | ------ ------
Total Fixed Charges 136 136 524 573 578 381 | 169 477
------ ------ ------ ------ ------- ------ | ------ ------
Coverage Adequacy (Deficiency) $ 119 $ 95 $ 426 $ 306 $ (667) $ (60) | $ (979) $ (131)
====== ====== ====== ====== ======= ====== | ====== ======
Coverage Ratio 1.88 1.70 1.81 1.53 n/a n/a | n/a n/a
====== ====== ====== ====== ======= ====== | ====== ======
</TABLE>
Note: A vertical black line is shown in the table above to separate
Continental's post-reorganized consolidated financial data of Holdings
since they have not been prepared on a consistent basis of accounting.
(a) Includes Fair Market Value Adjustments resulting from the Company's
emergence from bankruptcy.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Continental
Airlines, Inc. for the registration of $400,000,000 in debt securities and to
the incorporation by reference therein of our reports dated February 10, 1997,
with respect to the consolidated financial statements and schedules of
Continental Airlines, Inc. included in its Annual Report (form 10-K) for the
year ended December 31, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Houston, Texas
June 11, 1997
EXHIBIT 24.1
POWERS OF ATTORNEY
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ JEFFERY A. SMISEK
-------------------------------
(Signature)
Printed Name:JEFFERY A. SMISEK
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ GORDON M. BETHUNE
-------------------------------
(Signature)
Printed Name:GORDON M. BETHUNE
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ LAWRENCE W. KELLNER
-------------------------------
(Signature)
Printed Name:LAWRENCE W. KELLNER
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ MICHAEL P. BONDS
-------------------------------
(Signature)
Printed Name:MICHAEL P. BONDS
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ THOMAS J. BARRACK, JR.
-------------------------------
(Signature)
Printed Name:THOMAS J. BARRACK, JR.
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ GREGORY D. BRENNEMAN
-------------------------------
(Signature)
Printed Name:GREGORY D. BRENNEMAN
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ LLOYD M. BENTSEN, JR.
-------------------------------
(Signature)
Printed Name:LLOYD M. BENTSEN, JR.
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ DAVID BONDERMAN
-------------------------------
(Signature)
Printed Name:DAVID BONDERMAN
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ DOUGLAS H. McCORKINDALE
-------------------------------
(Signature)
Printed Name:DOUGLAS H. McCORKINDALE
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ GEORGE G. C. PARKER
-------------------------------
(Signature)
Printed Name:GEORGE G. C. PARKER
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ RICHARD W. POGUE
-------------------------------
(Signature)
Printed Name:RICHARD W. POGUE
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ WILLIAM S. PRICE III
-------------------------------
(Signature)
Printed Name:WILLIAM S. PRICE III
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ DONALD L. STURM
-------------------------------
(Signature)
Printed Name:DONALD L. STURM
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ KAREN HASTIE WILLIAMS
-------------------------------
(Signature)
Printed Name:KAREN HASTIE WILLIAMS
--------------------------
Dated and effective as of June
10, 1997
<PAGE>
POWER OF ATTORNEY
The undersigned director and/or officer of Continental Airlines, Inc., a
Delaware corporation (the "Company"), does hereby constitute and appoint
Lawrence W. Kellner, Jeffery A. Smisek and Scott R. Peterson, or any of them, as
the undersigned's true and lawful attorneys in-fact and agents to do any and all
things in the undersigned's name and behalf in the undersigned's capacity as a
director and/or officer of the Company, and to execute any and all instruments
for the undersigned and in the undersigned's name and capacity as a director
and/or officer that such person or persons may deem necessary or advisable to
enable the Company to comply with the Securities Act of 1933, as amended, and
any rules, regulations or requirements of the Securities and Exchange Commission
in connection with that certain Registration Statement on Form S-3 relating to
future debt offerings of the Company (the "Registration Statement"), including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacity as a director and/or officer of the Company the
Registration Statement, and any and all amendments thereto, including
post-effective amendments, and the undersigned does hereby ratify and confirm
all that such person or persons shall do or cause to be done by virtue hereof.
/S/ CHARLES A. YAMARONE
-------------------------------
(Signature)
Printed Name:CHARLES A. YAMARONE
--------------------------
Dated and effective as of June
10, 1997
