<PAGE>
As filed with the Securities and Exchange Commission on February 9, 1995
Registration No. 33-57453
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
----------------------
MERRY LAND & INVESTMENT COMPANY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-0961876
(State of Incorporation) (I.R.S. Employer Identification Number)
P.O. Box 1417
624 Ellis Street, Augusta, Georgia 30903
(706) 722-6756
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
W. Hale Barrett Copy to:
Secretary R.W. Smith, Jr., Esquire
Hull, Towill, Norman & Barrett, P.C. Piper & Marbury
7th Floor, Trust Company Bank Building 36 South Charles Street
P. O. Box 1564 Baltimore, Maryland 21201-3010
Augusta, Georgia 30903-1564 (410) 539-2530
(706)722-4481
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
--------------------
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective as
determined by market conditions and other factors.
--------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
===========================================================================
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
===========================================================================
<PAGE>
PROSPECTUS Subject to Completion
$400,000,000 February 9, 1995
Merry Land & Investment Company, Inc.
Debt Securities, Preferred Stock, Depositary Shares,
Common Stock and Common Stock Warrants
--------------------
Merry Land & Investment Company, Inc. ("Merry Land" or the "Company")
may from time to time offer in one or more series (i) its unsecured senior
or subordinated debt securities (the "Debt Securities"), (ii) shares or
fractional shares of its preferred stock, without par value (the "Preferred
Stock"), (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), (iv) shares of its common stock, without par
value (the "Common Stock"), or (v) warrants to purchase Common Stock (the
"Common Stock Warrants"), with an aggregate public offering price of up to
$400,000,000 on terms to be determined at the time of offering. The Debt
Securities, Preferred Stock, Depositary Shares, Common Stock and Common
Stock Warrants (collectively, the "Offered Securities") may be offered,
separately or together, in separate series in amounts, at prices and on
terms to be set forth in a supplement to this Prospectus (each, a
"Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Company
and may be either senior Debt Securities ("Senior Securities") or
subordinated Debt Securities ("Subordinated Securities"). The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Securities will be
subordinated to all existing and future Senior Debt of the Company, as
defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement and will include, where applicable: (i) in the case
of Debt Securities, the specific title, aggregate principal amount,
currency, form (which may be registered or bearer, or certificated or
global), authorized denominations, maturity, rate (or manner of calculation
thereof) and time of payment of interest, terms for redemption at the
option of the Company or repayment at the option of the Holder, terms for
sinking fund payments, terms for conversion into Preferred Stock, Common
Stock or other Company securities, additional covenants, and any initial
public offering price; (ii) in the case of Preferred Stock, the specific
title and stated value, any dividend, liquidation, redemption, conversion,
voting and other rights, and any initial public offering price; (iii) in
the case of Depositary Shares, the fractional share of Preferred Stock
represented by each such Depositary Share; (iv) in the case of Common
Stock, any initial public offering price; and (v) in the case of Common
Stock Warrants, the duration, offering price, exercise price and
detachability. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Offered
Securities, in each case as may be appropriate to preserve the status of
the Company as a real estate investment trust for federal income tax
purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of,
the Offered Securities covered by such Prospectus Supplement.
The Offered Securities may be offered directly by the Company, through
agents designated from time to time by the Company, or to or through
underwriters or dealers. If any agents or underwriters are involved in the
sale of any of the Offered Securities, their names, and any applicable
purchase price, fee, commission or discount arrangement between or among
them, will be set forth, or will be calculable from the information set
forth, in the applicable Prospectus Supplement. See "Plan of
Distribution." No Offered Securities may be sold without delivery of the
applicable Prospectus Supplement describing the Offered Securities and the
method and terms of the offering.
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.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is February __, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith
files reports, proxy statements and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and its Regional Offices located at:
75 Park Place, New York, New York 10017; and 500 West Madison Street,
Chicago, Illinois 60661; and can also be inspected and copied at the
offices of the New York Stock Exchange at 20 Broad Street, New York, New
York 10005. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company has filed a registration statement with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"), with respect
to the Offered Securities (the "Registration Statement"). As permitted by
the rules and regulations of the Commission, this Prospectus does not
contain all of the information set forth in the Registration Statement. For
further information, reference is made to such Registration Statement and
to the exhibits, which may be inspected and copied at or obtained from the
Commission's public reference facilities, 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon payment of the prescribed fees. Each statement
made in this Prospectus with respect to a document that is filed as an
exhibit to the Registration Statement is qualified by reference to such
exhibit for a complete statement of the terms and conditions thereof.
There are incorporated herein by reference the following documents
heretofore filed by the Company with the Commission:
(i) the Company's annual report on Form 10-K for the year ended
December 31, 1993;
(ii) the Company's current reports on Form 8-K/A filed on March 1, 1994
and March 2, 1994, amending the Company's current reports on Form
8-K filed on November 19, 1993 and December 30, 1993, respectively;
(iii) the Company's current reports on Form 8-K filed June 6, 1994, June
16, 1994, June 29, 1994, August 15, 1994 (as amended on Forms 8-K/A
filed on September 27, 1994 and February 7, 1995), November 3, 1994
(as amended on Form 8-K/A filed on January 24, 1995, which contains
a description of the Company's $2.205 Series B Cumulative
Convertible Preferred Stock) and December 2, 1994;
(iv) the Company's quarterly reports on Form 10-Q for the quarters ended
March 31, 1994, June 30, 1994 and September 30, 1994;
(v) the description of the Company's Common Stock and $1.75 Series A
Cumulative Convertible Preferred Stock contained in the Company's
registration statements on Form 8-A filed under the Exchange Act,
including any amendments or reports filed for the purpose of
updating such descriptions; and
(vi) the Company's definitive proxy statement dated March 22, 1994
relating to the annual meeting of shareholders held on April 18,
1994.
All documents filed by the Company pursuant to Sections 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 shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing such documents.
Any statement contained herein or in a document incorporated herein by
reference or deemed to be incorporated herein by reference shall be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, in any accompanying Prospectus Supplement
relating to a specific offering of Offered Securities or in any other
amendment or supplement hereto or document subsequently incorporated herein
by reference, 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.
Copies of all documents incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates), will be provided without charge to each person who receives
a copy of this Prospectus on the written or oral request of such person
directed to W. Hale Barrett, the Company's Secretary, 624 Ellis Street,
Augusta, Georgia 30901, telephone number (706) 722-6756.
<PAGE>
THE COMPANY
Merry Land is one of the largest owners and operators of upscale garden
apartments in the Southern region of the United States. Merry Land became
an independent publicly owned company in 1981 and has been managing
apartment communities since 1982. It is a self-administered and
self-managed real estate investment trust ("REIT") headquartered in
Augusta, Georgia. At December 31, 1994, the Company owned 73 apartment
communities containing 18,851 units and having an aggregate cost of $796.4
million. At that date, the communities had an average occupancy of 96% and
an average monthly rental rate of $593. The Company's apartment
communities are located in Florida, Georgia, Maryland, North Carolina,
Ohio, South Carolina, Tennessee and Virginia.
Merry Land is a Georgia corporation. The Company's principal office is
located at 624 Ellis Street, Augusta, Georgia 30901 and its telephone
number is (706) 722-6756.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Offered Securities will be used for
general corporate purposes, which may include repayment of indebtedness,
making improvements to apartment properties, the acquisition of additional
apartment properties and the development and construction of new apartment
properties.
CERTAIN RATIOS
The following table sets forth the Company's ratio of earnings to fixed
charges and ratio of earnings to combined fixed charges and Preferred Stock
dividends for the periods shown.
<TABLE>
<CAPTION>
Year Ended December 31,
1990 1991 1992 1993 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges 1.26x 1.69x 2.98x 5.58x 4.44x
Ratio of earnings to
combined fixed charges and
Preferred Stock dividends 1.26x 1.69x 2.98x 3.29x 2.56x
</TABLE>
The ratio of earnings to fixed charges was computed by dividing earnings
by fixed charges. The ratio of earnings to combined fixed charges and
Preferred Stock dividends was computed by dividing earnings by fixed
charges and Preferred Stock dividends. For the purpose of computing these
ratios, earnings consist of income before taxes plus fixed charges. Fixed
charges consist of interest on borrowed funds and amortization of debt
discount and expense. Preferred Stock dividends consist of those dividends
paid on the Company's $1.75 Series A Cumulative Convertible Preferred Stock
(the "Series A Preferred Stock") and $2.205 Series B Cumulative Convertible
Preferred Stock (the "Series B Preferred Stock") during the respective
periods set forth in the preceding table.
DESCRIPTION OF DEBT SECURITIES
General
- -------
The Senior Securities are to be issued under an indenture dated as of
February 1, 1995, as supplemented from time to time (the "Senior
Indenture"), between the Company and First Union National Bank of Georgia
(the "Senior Indenture Trustee"), and the Subordinated Securities are to be
issued under an indenture dated as of February 1, 1995, as supplemented
from time to time (the "Subordinated Indenture"), between the Company and
First Union National Bank of Georgia (the "Subordinated Indenture
Trustee"). The term "Trustee," as used herein, shall refer to the Senior
Indenture Trustee or the Subordinated Indenture Trustee, as appropriate.
The forms of the Senior Indenture and the Subordinated Indenture (being
sometimes referred to herein collectively as the "Indentures" and
individually as an "Indenture") are filed as exhibits to the Registration
Statement and are available for inspection at the corporate trust office of
the Senior Indenture Trustee in Atlanta, Georgia and the corporate trust
office of the Subordinated Indenture Trustee in Atlanta, Georgia or as
described under "Available Information." The Indentures are subject to and
governed by the Trust Indenture Act of 1939, as amended (the "TIA"). The
statements made herein relating to the Indentures and the Debt Securities
are summaries of certain provisions thereof, do not purport to be complete
and are subject to, and are qualified in their entirety by reference to,
all provisions of the Indentures and the Debt Securities. All section
references appearing herein are to sections of the Indentures, and
capitalized terms used but not defined herein have the respective meanings
set forth in the Indentures and the Debt Securities.
Terms
- -----
The Debt Securities will be direct, unsecured obligations of the
Company. The indebtedness represented by the Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The indebtedness represented by the Subordinated Securities will
be subordinated in right of payment to the prior payment in full of the
Senior Debt of the Company, as described under "Subordination".
Each Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case
as established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in
one or more indentures supplemental to such Indenture. Debt Securities may
be issued with terms different from those of Debt Securities previously
issued; all Debt Securities of 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 of the Debt Securities of such series, for issuances
of additional Debt Securities of such series (Section 301 of each
Indenture).
Each Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities.
Any Trustee under either Indenture may resign or be removed with respect to
one or more series of Debt Securities, and a successor Trustee may be
appointed to act with respect to such series (Section 608 of each
Indenture). In the event that two or more persons are acting as Trustee
with respect to different series of Debt Securities, each such Trustee
shall be a Trustee of a trust under the applicable Indenture separate and
apart from the trust administered by any other Trustee (Sections 101 and
609 of each Indenture), and, except as otherwise indicated herein, any
action described herein to be taken by the Trustee may be taken by each
such Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
2) the aggregate principal amount of such Debt Securities and any
limit on such principal amount;
3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount payable upon
declaration of acceleration of the maturity thereof, or (if
applicable) the portion of the principal amount of such Debt
Securities that is convertible into Capital Stock (as defined in
the Indentures), or the method by which any such portion will be
determined;
4) if convertible, any applicable limitations on the ownership or
transferability of the Capital Stock into which such Debt
Securities are convertible;
5) the date or dates, or the method by which such date or dates will
be determined, on which the principal of such Debt Securities
will be payable and the amount of principal payable thereon;
6) the rate or rates (which may be fixed or variable) at which such
Debt Securities will bear interest, if any, or the method by
which such rate or rates will be determined, the date or dates
from which such interest will accrue or the method by which such
date or dates will be determined, the Interest Payment Dates on
which any such interest will be payable and the Regular Record
Dates, if any, for such Interest payable on any Registered
Security on any Interest Payment Dates, or the method by which
such Dates will be determined, and the basis upon which interest
will be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
7) the place or places where the principal of (and premium or Make-
Whole Amount (as defined), if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, such Debt
Securities will be payable, where such Debt Securities may be
surrendered for registration of transfer, conversion or exchange
and where notices or demands to or upon the Company in respect of
such Debt Securities and the applicable Indenture may be served;
8) the period or periods within which, the price or prices
(including premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which and other terms and conditions
upon which such Debt Securities may be redeemed in whole or in
part, at the option of the Company, if the Company is to have the
option;
9) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency
unit or units or composite currency or currencies in which, and
other terms and conditions upon which such Debt Securities will
be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
10) whether such Debt Securities will be in registered or bearer form
and terms and conditions relating thereto, and, if other than
$1,000 and any integral multiple thereof, the denominations in
which any registered Debt Securities will be issuable and, if
other than $5,000, the denomination or denominations in which any
bearer Debt Securities will be issuable;
11) if other than United States dollars, the currency or currencies
in which such Debt Securities will be denominated and payable,
which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies;
12) whether the amount of payment of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt
Securities may be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts will be
determined;
13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on such Debt
Securities are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or
units or composite currency or currencies other than that in
which such Debt Securities are denominated or stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time
and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the
currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are
denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are to be so payable;
14) provisions, if any, granting special rights to the Holders of
such Debt Securities upon the occurrence of such events as may be
specified;
15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Debt
Securities, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth
in the applicable Indenture;
16) whether such Debt Securities will be issued in certificated or
book-entry form and terms and conditions related thereto;
17) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen of the applicable
Indenture;
18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the Indenture on such Debt
Securities to any Holder who is not a United States person in
respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Debt
Securities rather than pay such Additional Amounts (and the terms
of any such option);
19) the obligation, if any, of the Company to permit the conversion
of the Debt Securities of such series into shares of Capital
Stock of the Company and the terms and conditions upon which such
conversion shall be effected; and
20) any other terms of such Debt Securities, which terms shall not be
inconsistent with the provisions of the applicable Indenture
(Section 301 of each Indenture).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the
maturity thereof ("Original Issue Discount Securities") (Section 502 of
each Indenture). Any special United States federal income tax, accounting
and other considerations applicable to Original Issue Discount Securities
will be described in the applicable Prospectus Supplement.
Denominations, Interest, Registration and Transfer
- --------------------------------------------------
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities of
any series issued in bearer form will be issuable in denominations of
$5,000 (Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Senior Securities will be payable at the corporate trust office
of the Senior Indenture Trustee located at Corporate Trust Administration,
999 Peachtree Street, N.E., Suite 1100, Atlanta, Georgia 30309, and the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Subordinated Securities will be payable at the corporate trust
office of the Subordinated Indenture Trustee located at Corporate Trust
Administration, 999 Peachtree Street, N.E., Suite 1100, Atlanta, Georgia
30309; provided that at the option of the Company payment of interest on
any series of Debt Securities may be made by check mailed to the address of
the Person entitled thereto as it appears in the Security Register for such
series or by wire transfer of funds to such Person at an account maintained
within the United States (Sections 301, 305, 306, 307 and 1002 of each
Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular
Record Date and may either be paid to the Person in whose name such Debt
Security is registered at the close of business on a special record date
(the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee, in which case notice thereof shall be given to the
Holder of such Debt Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as
more completely described in the applicable Indenture (Section 307 of each
Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of
such Debt Securities at the corporate trust office of the Trustee referred
to above. In addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any series may
be surrendered for conversion or registration of transfer thereof at the
corporate trust office of the Trustee referred to above. Every Debt
Security surrendered for conversion, registration or transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer.
No service charge will be made for any registration or transfer or exchange
of any Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith (Section 305 of each Indenture). If the applicable
Prospectus Supplement refers to any transfer agent (in addition to the
Trustee) initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the designation of any
such transfer agent or approve a change in the location through which such
transfer agent acts, except that the Company will be required to maintain a
transfer agent in each Place of Payment for such series. The Company may
at any time designate additional transfer agents with respect to any series
of Debt Securities (Section 1002 of each Indenture).
Neither the Company nor the Trustee shall 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 the day of mailing or publication of the relevant notice of
redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part; (iii) exchange
any Bearer Security selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption; or (iv) issue, register the transfer of or
exchange any Debt Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Debt Security not
to be so repaid (Section 305 of each Indenture).
Merger, Consolidation or Sale
- -----------------------------
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
entity, provided that (a) either the Company shall be the continuing
entity, or the successor entity (if other than the Company) formed by or
resulting from any such consolidation or merger or which shall have
received the transfer of such assets is a Person organized and existing
under the laws of the United States or any State thereof and shall
expressly assume payment of the principal of (and premium or Make-Whole
Amount, if any) and interest (including all Additional Amounts, if any) on
all of the Debt Securities and the due and punctual performance and
observance of all of the covenants and conditions contained in each
Indenture; (b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result thereof as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default under
an Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion covering
such conditions shall be delivered to the Trustee (Sections 801 and 803 of
each Indenture).
Certain Covenants
- -----------------
EXISTENCE. Except as described above under "Merger, Consolidation or
Sale," the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter
and statutory) and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any
right or franchise if it determines that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders of the Debt Securities of any series
(Section 1005 of each Indenture).
MAINTENANCE OF PROPERTIES. The Company will cause all of its properties
used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that the Company
and its Subsidiaries shall not be prevented from selling or otherwise
disposing of for value their properties in the ordinary course of business
(Section 1006 of each Indenture).
INSURANCE. The Company will, and will cause each of its Subsidiaries
to, keep all of its insurable properties insured against loss or damage in
an amount at least equal to their then full insurable value with
financially sound and reputable insurance companies (Section 1007 of each
Indenture).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or discharge or
cause to be paid or discharged, before the same become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the Company or
any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings
(Section 1008 of each Indenture).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, to
the extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to such
Section 13 and 15(d) if the Company were so subject, such documents to be
filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject. The Company will
also in any event (x) within 15 days of each Required Filing Date (i)
transmit by mail to all Holders of Debt Securities, as their names and
addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Company would
have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Company were subject to such Sections and
(ii) file with the Trustee copies of the annual reports, quarterly reports
and other documents which the Company would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections and (y) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any
prospective Holder (Section 1009 of each Indenture).
WAIVER OF CERTAIN COVENANTS. The Company may omit to comply with any
term, provision or condition of the foregoing covenants, and with any other
term, provision or condition with respect to the Debt Securities of any
series specified in Section 301 of the Indentures (except any such term,
provision or condition which could not be amended without the consent of
all Holders of Debt Securities of such series), if before or after the time
for such compliance the Holders of at least a majority in principal amount
of all outstanding Debt Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived,
and until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect (Section 1012
of each Indenture).
ADDITIONAL COVENANTS. The Prospectus Supplement for a particular series
of Debt Securities may contain additional covenants of the Company with
respect to such series of Debt Securities.
Events of Default, Notice and Waiver
- ------------------------------------
Each Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder:
(a) default for 30 days in the payment of any installment of interest or
Additional Amounts payable on any Debt Security of such series: (b)
default in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) any Debt Security of such series at its Maturity; (c)
default in making any sinking fund payment as required for any Debt
Security of such series; (d) default in the performance of any other
covenant of the Company contained in the Indenture (other than a covenant
added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the Indenture; (e) default under any
bond, debenture, note, mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor) having an aggregate
principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such acceleration having been rescinded or annulled within 10 days after
written notice to the Company as provided in the Indenture; (f) the entry
by a court of competent jurisdiction of one or more judgments, orders or
decrees against the Company or any Subsidiary in an aggregate amount
(excluding amounts fully covered by insurance) in excess of $10,000,000 and
such judgments, orders or decrees remain undischarged, unstayed and
unsatisfied in an aggregate amount (excluding amounts fully covered by
insurance) in excess of $10,000,000 for a period of 30 consecutive days;
(g) certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Company or any
Significant Subsidiary or for all or substantially all of the property of
the Company or any Significant Subsidiary; and (h) any other Event of
Default provided with respect to such series of Debt Securities (Section
501 of each Indenture). The term "Significant Subsidiary" means each
significant subsidiary (as defined in Regulations S-X promulgated under the
Securities Act) of the Company.
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt 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 thereof) of, and
premium or Make-Whole Amount, if any, on, all of the Debt Securities of
that series to be due and payable immediately by written notice thereof to
the Company (and to the Trustee if given by the Holders). However, at any
time after such declaration of acceleration with respect to Debt Securities
of such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind
and annul such declaration and its consequences if (a) the Company shall
have deposited with the Trustee all required payments of the principal of
(and premium or Make-Whole Amount, if any) and interest, and any Additional
Amounts, on the Debt Securities of such series (or of all Debt Securities
then Outstanding under the applicable Indenture, as the case may be), plus
certain fees, expenses, disbursements and advances of the Trustee and (b)
all Events of Default, other than the nonpayment of accelerated principal
(or specified portion thereof and the premium or Make-Whole Amount, if any)
or interest, with respect to the Debt Securities of such series (or of all
Debt Securities then Outstanding under the applicable Indenture, as the
case may be) have been cured or waived as provided in the Indenture
(Section 502 of each Indenture). Each Indenture also provides that the
Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series (or of all Debt Securities then Outstanding
under the applicable Indenture, as the case may be) may waive any past
default with respect to such series and its consequences, except a default
(x) in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest or Additional Amounts payable on any Debt Security of such
series or (y) in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security affected thereby (Section
513 of each Indenture).
The Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided,
however, that such Trustee may withhold notice to the Holders of any series
of Debt Securities of any default with respect to such series (except a
default in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest or Additional Amounts payable on any Debt
Security of such series or in the payment of any sinking fund installment
in respect of any Debt Security of such series) if the Responsible Officers
of such Trustee consider such withholding to be in the interest of such
Holders (Section 601 of each Indenture).
Each Indenture provides that no Holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of
the Trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of
such series, as well as an offer of reasonable indemnity (Section 507 of
each Indenture). This provision will not prevent, however, any Holder of
Debt Securities from instituting suit for the enforcement of payment of the
principal of (and premium or Make-Whole Amount, if any), interest on and
Additional Amounts payable with respect to, such Debt Securities at the
respective due dates or redemption dates thereof (Section 508 of each
Indenture).
Modification of the Indentures
- ------------------------------
Modifications and amendment of either Indenture may be made with the
consent of the Holders of not less than a majority in principal amount of
all Outstanding Debt Securities issued under such Indenture that are
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
such Debt Security affected thereby, (a) change the stated Maturity of the
principal of (or premium or Make-Whole Amount, if any), or any installment
of principal of or interest or Additional Amounts payable on, any such Debt
Security; (b) reduce the principal amount of, or the rate or amount of
interest on, or any premium or Make-Whole Amount payable on redemption of,
or any Additional Amount payable with respect to, any such Debt Security,
or reduce the amount of principal of an Original Issue Discount Security or
Make-Whole Amount, if any, that would be due and payable upon declaration
of acceleration of the maturity thereof or would be provable in bankruptcy,
or adversely affect any right of repayment of the Holder of any such Debt
Security; (c) change the Place of Payment, or the coin or currency, for
payment of principal of (and premium or Make-Whole Amount, if any), or
interest on, or any Additional Amounts payable with respect to, any such
Debt Security; (d) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Debt Security; (e) reduce the
percentage of Outstanding Debt Securities of any series, the consent of
whose Holders is necessary to modify or amend the applicable Indenture, to
waive compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set
forth in the Indenture; or (f) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or
certain covenants, except to increase the required percentage to effect
such action or to provide that certain other provisions may not be modified
or waived without the consent of the Holder of each such Debt Security
(Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under either Indenture have the right to
waive compliance by the Company with certain covenants in such Indenture
(Section 1012 of each Indenture).
Modifications and amendments of either Indenture may be made by the
Company and the respective Trustee thereunder without the consent of any
Holder of Debt Securities for any of the following purposes:
(i) to evidence the succession of another Person to the Company as
obligor under such Indenture;
(ii) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Company in such Indenture;
(iii) to add Events of Default for the benefit of the Holders of all or
any series of Debt Securities;
(iv) to add or change any provisions of either Indenture to facilitate
the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form provided that
such action shall not adversely affect the interests of the
Holders of the Debt Securities of any series in any material
respect;
(v) to add, change or eliminate any provisions of either Indenture,
provided that any such addition, change or elimination shall
become effective only when there are no Debt Securities
Outstanding of any series created prior thereto which are
entitled to the benefit of such provision;
(vi) to secure the Debt Securities;
(vii) to establish the form or terms of Debt Securities of any series,
including the provisions and procedures, if applicable, for the
conversion of such Debt Securities into Common Stock or Preferred
Stock of the Company;
(viii) to provide for the acceptance of appointment by a successor
Trustee or facilitate the administration of the trusts under
either Indenture by more than one Trustee;
(ix) to cure any ambiguity, defect or inconsistency in either
Indenture, provided that such action shall not adversely affect
the interests of Holders of Debt Securities of any series issued
under such Indenture;
(x) to close either Indenture with respect to the authentication and
delivery of additional series of Debt Securities or to qualify,
or maintain qualification of, either Indenture under the Trust
Indenture Act; or
(xi) to supplement any of the provisions of either Indenture to the
extent necessary to permit or facilitate defeasance and discharge
of any series of such Debt Securities, provided that such action
shall not adversely affect the interests of the Holders of the
Debt Securities of any series in any material respect (Section
901 of each Indenture).
Subordination
- -------------
Upon any distribution to creditors of the Company in a liquidation,
dissolution, bankruptcy, insolvency or reorganization, the payment of the
principal of and interest on the Subordinated Securities will be
subordinated to the extent provided in the Subordinated Indenture in right
of payment to the prior payment in full of all Senior Debt (Sections 1601
and 1602 of the Subordinated Indenture), but the obligation of the Company
to make payment of the principal and interest on the Subordinated
Securities will not otherwise be affected (Section 1608 of the Subordinated
Indenture). No payment of principal or interest may be made on the
Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives
notice of the default (Section 1603 of the Subordinated Indenture). The
Company may resume payments on the Subordinated Securities when the default
is cured or waived, or 120 days pass after the notice is given if the
default is not the subject of judicial proceedings, if the subordination
provisions of the Subordinated Indenture otherwise permit payment at that
time (Section 1603 of the Subordinated Indenture). After all Senior Debt
is paid in full and until the Subordinated Securities are paid in full,
holders will be subrogated to the rights of holders of Senior Debt to the
extent that distributions otherwise payable to holders have been applied to
the payment of Senior Debt (Section 1607 of the Subordinated Indenture). By
reason of such subordination, in the event of a distribution of assets upon
insolvency, certain general creditors of the Company may recover more,
ratably, than holders of the Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of
and interest on, or substantially similar payments to be made by the
Company in respect of, the following, whether outstanding at the date of
execution of the Subordinated Indenture or thereafter incurred, created or
assumed: (a) indebtedness of the Company for money borrowed or represented
by purchase-money obligations, (b) indebtedness of the Company evidenced by
notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument,
(c) obligations of the Company as lessee under leases of property either
made as part of any sale and leaseback transaction to which the Company is
a party or otherwise, (d) indebtedness of partnerships and joint ventures
that is included in the consolidated financial statements of the Company,
(e) indebtedness, obligations and liabilities of others in respect of which
the Company is liable contingently or otherwise to pay or advance money or
property or as guarantor, endorser or otherwise or which the Company has
agreed to purchase or otherwise acquire, and (f) any binding commitment of
the Company to fund any real estate investment or to fund any investment in
any entity making such real estate investment, in each case other than (1)
any such indebtedness, obligation or liability referred to in clauses (a)
through (f) above as to which, in the instrument creating or evidencing the
same pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment
to the Subordinated Securities or ranks pari passu with the Subordinated
Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated, and (3) the Subordinated Securities (Section 101 of the
Subordinated Indenture). At December 31, 1994, Senior Debt aggregated
approximately $212.8 million. There are no restrictions in the
Subordinated Indenture upon the creation of additional Senior Debt or other
indebtedness.
Discharge, Defeasance and Covenant Defeasance
- ---------------------------------------------
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not
already been delivered to the applicable Trustee for cancellation and that
either have become due and payable or will become due and payable within
one year (or scheduled for redemption within one year) by irrevocably
depositing with the applicable Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in
which such Debt Securities are payable in an amount sufficient to pay the
entire indebtedness on such Debt Securities in respect of principal (and
premium or Make-Whole Amount, if any) and interest and any Additional
Amounts payable to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen
thereof are made applicable to the Debt Securities of or within any series
pursuant to section 301 of such Indenture, the Company may elect either (a)
to defease and be discharged from any and all obligations with respect to
such Debt Securities (except for the obligation to pay Additional Amounts,
if any, upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities and
the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities, to maintain an office or agency in respect of such Debt
Securities and to hold moneys for payment in trust) ("defeasance") (Section
1402 of each Indenture) or (b) to be released from its obligations with
respect to such Debt Securities under provisions of each Indenture
described under "Certain Covenants," or, if provided pursuant to Section
301 of each Indenture, its obligations with respect to any other covenant,
and any omission to comply with such obligations shall not constitute a
default or an Event or Default with respect to such Debt Securities
("covenant defeasance") (Section 1403 of each Indenture), in either case
upon the irrevocable deposit by the Company with the applicable Trustee, in
trust, of an amount, in such currency or currencies, currency unit or
currency units or composite currency or currencies in which such Debt
Securities are payable at Stated Maturity, or Government Obligations (as
defined below), or both, applicable to such Debt Securities which through
the scheduled payment of principal and interest in accordance with their
terms will provide money in an amount sufficient to pay the principal of
(and premium or Make-Whole Amount, if any) and interest on such Debt
Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company
has delivered to the applicable Trustee an Opinion of Counsel (as specified
in each Indenture) to the effect that the Holders of such Debt Securities
will not recognize income, gain or loss for United States federal income
tax purposes as a result of such defeasance or covenant defeasance and will
be subject to United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and 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 United
States federal income tax laws occurring after the date of such Indenture
(Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign Currency in which the Debt 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 of America or the
government which issued the Foreign Currency in which the Debt Securities
of such series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America 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
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt (Section 101 of
each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of
any series, (a) the Holder of a Debt Security of such series is entitled
to, and does, elect pursuant to Section 301 of either Indenture or the
terms of such Debt Security to receive payment in a currency, currency unit
or composite currency other than that in which such deposit has been made
in respect to such Debt Security, or (b) a Conversion Event (as defined
below) occurs in respect of the currency, currency unit or composite
currency in which such deposit has been made, the indebtedness represented
by such Debt Security shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit
or composite currency in which such Debt Security becomes payable as a
result of such election or such cessation of usage based on the applicable
market exchange rate (Section 1405 of each Indenture).
"Conversion Event" means the cessation of use of (i) a currency,
currency unit or composite currency issued by the government of one or more
countries other than the United States (other than the ECU or other
currency unit) both by the government of the country that 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 or composite currency other than the ECU for the
purposes for which it was established (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium or Make-Whole Amount, if any) and
interest on any Debt Security that is payable in a Foreign Currency that
ceases to be used by its government of issuance shall be made in United
States dollars.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in clause (d) under "Events of Default, Notice and
Waiver" with respect to Sections 1004 to 1009, inclusive, of either
Indenture (which Sections would no longer be applicable to such Debt
Securities) or described in clause (h) under "Events of Default, Notice and
Waiver" with respect to a covenant as to which there has been covenant
defeasance, the amount in such currency, currency unit or composite
currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts
due on such Debt Securities at the time of their Stated Maturity but may
not be sufficient to pay amounts due on such Debt Securities at the time of
the acceleration resulting from such Event of Default. However, the Company
would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect
to the Debt Securities of or within a particular series.
Conversion Rights
- -----------------
The terms and conditions, if any, upon which the Debt Securities are
convertible into Capital Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include whether
such Debt Securities are convertible into Capital Stock, the conversion
price (or manner of calculation thereof), the conversion period, provisions
as to whether conversion will be at the option of the Holders or the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities.
Book-Entry System
- -----------------
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified
in the Prospectus Supplement relating to such series. Global Securities, if
any, issued in the United States are expected to be deposited with the
Depository Trust Company, as Depository. Global Securities may be issued in
fully registered form and may be issued in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security may not
be transferred except as a whole by the Depository for such Global Security
to a nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such Depository or
any nominee of such Depository to a successor Depository or any nominee of
such successor.
The specific terms of the depository arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. The Company expects that unless otherwise
indicated in the applicable Prospectus Supplement, the following provisions
will apply to depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and
transfer system the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons
that have accounts with such Depository ("Participants"). Such accounts
shall be designated by the underwriters, dealers or agents with respect to
such Debt Securities or by the Company if such Debt Securities are offered
directly by the Company. Ownership of beneficial interests in such Global
Security will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depository for such Global
Security or its nominee (with respect to beneficial interests of
Participants) and records of Participants (with respect to beneficial
interests of persons who hold through Participants). The laws of some
states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the
ability to own, pledge or transfer beneficial interest in a Global
Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable
Prospectus Supplement, owners of beneficial interest in a Global Security
will not be entitled to have any of the individual Debt Securities
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of any such Debt
Securities in definitive form and will not be considered the owners or
holders thereof under the applicable Indenture.
Payments of principal of, any premium or Make-Whole Amount and any
interest on, or any Additional Amounts payable with respect to, individual
Debt Securities represented by a Global Security registered in the name of
a Depository or its nominee will be made to the Depository or its nominee,
as the case may be, as the registered owner of the Global Security. None
of the Company, the Trustee, any Paying Agent or the Security Registrar for
such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company expects that the Depository for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole
Amount, interest or Additional Amounts in respect of the Global Security
representing such Debt Securities, will immediately credit Participants'
accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Security as
shown on the records of such Depository or its nominee. The Company also
expects that payments by Participants to owners of beneficial interests in
such Global Security held through such Participants will be governed by
standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered
in street name. Such payments will be the responsibility of such
Participants.
If a Depository for any Debt Securities is at any time unwilling, unable
or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual
Debt Securities in exchange for the Global Security representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any of
such Debt Securities represented by one or more Global Securities and in
such event will issue individual Debt Securities in exchange for the Global
Security or Securities representing such Debt Securities. Individual Debt
Securities so issued will be issued in denominations of $1,000 and integral
multiples thereof.
Trustees
- --------
First Union National Bank of North Carolina, the Senior Indenture
Trustee and the Subordinate Indenture Trustee, also provides the Company's
revolving line of credit facility and from time to time directly or through
affiliates performs other services for the Company in the normal course of
business.
Governing Law
- -------------
The Indentures are governed by and shall be construed in accordance with
the laws of the State of Georgia.
DESCRIPTION OF COMMON STOCK
This summary of certain terms and provisions of the Company's Common
Stock does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the terms and provisions of the Company's
Articles of Incorporation, as amended (the "Articles"), and By-laws, as
amended, which are filed as exhibits to the Registration Statement of which
this Prospectus is a part.
The Company has 50,000,000 shares of Common Stock authorized and
30,744,451 shares were outstanding at December 31, 1994. All outstanding
shares of Common Stock are fully paid and nonassessable.
The transfer agent and registrar for the Common Stock is First Union
National Bank of North Carolina, Charlotte, North Carolina. The Company's
Common Stock is traded on the New York Stock Exchange under the symbol
"MRY".
The holders of Common Stock are entitled to receive such dividends as
are declared by the Board of Directors, after payment of, or provision for,
full cumulative dividends for outstanding Preferred Stock. Each share of
Common Stock is entitled to one vote on all matters submitted to a vote of
shareholders, including the election of directors. Cumulative voting for
directors is not permitted, which means that holders of more than 50% of
all of the shares of Common Stock voting can elect all of the directors if
they choose to do so, and, in such event, the holders of the remaining
shares of Common Stock will not be able to elect any directors. Holders of
Common Stock and Preferred Stock, when outstanding and when entitled to
vote, vote as a class, except with respect to matters that relate only to
the rights, terms or conditions of the Preferred Stock, that affect only
the holders of the Preferred Stock, or that relate to the rights of the
holders of the Preferred Stock if the Company fails to fulfill any of its
obligations regarding the Preferred Stock. Upon any dissolution,
liquidation or winding up of the Company, the holders of Common Stock are
entitled to receive pro rata all of the Company's assets and funds
remaining after payment of, or provision for, creditors and distribution
of, or provision for, preferential amounts and unpaid accumulated dividends
to holders of Preferred Stock. Holders of Common Stock have no preemptive
right to purchase or subscribe for any shares of capital stock of the
Company.
DESCRIPTION OF PREFERRED STOCK
This summary of certain terms and provisions of the Company's Preferred
Stock does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the terms and provisions of the Company's
Articles and By-laws, as amended, which are filed as exhibits to the
Registration Statement of which this Prospectus is a part.
The Articles authorize the issuance of 20,000,000 shares of Preferred
Stock, without par value, of which 2,516,324 shares of Series A Preferred
Stock and 4,000,000 shares of Series B Preferred Stock were issued and
outstanding at December 31, 1994. All outstanding shares of the Series A
Preferred Stock and the Series B Preferred Stock are fully paid and
nonassessable.
The transfer agent and registrar for the Series A Preferred Stock and
the Series B Preferred Stock is First Union National Bank of North
Carolina, Charlotte, North Carolina.
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of
Preferred Stock offered by a Prospectus Supplement will be described in
that Prospectus Supplement. The description set forth below is subject to
and qualified in its entirety by reference to the Articles of Amendment to
the Articles fixing the preferences, limitations and relative rights of a
particular series of Preferred Stock.
General
- -------
Under the Articles, the Board of Directors of the Company is authorized,
without further shareholder action, to provide for the issuance of up to
20,000,000 shares of Preferred Stock, in one or more series, with such
voting powers and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions, as the Board of Directors shall approve. At
December 31, 1994 the Company had 6,516,324 shares of Preferred Stock
issued and outstanding of its 20,000,000 authorized shares of Preferred
Stock.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in
the Prospectus Supplement relating to a particular series of Preferred
Stock. Reference is made to the Prospectus Supplement relating to the
particular series of Preferred Stock offered thereby for specific terms,
including: (i) the title and liquidation preference per share of such
Preferred Stock and the number of shares offered; (ii) the price at which
such series of Preferred Stock will be issued; (iii) the dividend rate (or
method of calculation), the dates on which dividends shall be payable and
the dates from which dividends shall commence to accumulate; (iv) any
redemption or sinking fund provisions of such series of Preferred Stock;
(v) any conversion provisions of such series of Preferred Stock; and (vi)
any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions of such
series of Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Preferred Stock, each series will rank on a parity as
to dividends and distributions in the event of a liquidation with each
other series of Preferred Stock and, in all cases, will be senior to the
Common Stock.
Dividend Rights
- ---------------
Holders of Preferred Stock of each series will be entitled to receive,
when as and if declared by the Board of Directors, out of assets of the
Company legally available therefor, cash dividends at such rates and on
such dates as are set forth in the Prospectus Supplement relating to such
series of Preferred Stock. Such rate may be fixed or variable or both and
may be cumulative, noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as any
shares of Preferred Stock are outstanding, no dividends will be declared or
paid or any distributions be made on the Common Stock, other than a
dividend payable in Common Stock, unless the accrued dividends on each
series of Preferred Stock have been fully paid or declared and set apart
for payment and the Company shall have set apart all amounts, if any,
required to be set apart for all sinking funds, if any, for each series of
Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are
not paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock
and any other series of Preferred Stock ranking on a parity as to dividends
will be declared pro rata so that the amount of dividends declared per
share on such series of Preferred Stock and such other series will in all
cases bear to each other the same ratio that accrued dividends per share on
such series of Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series, which may
be based upon one or more methods of determination. Different series of
Preferred Stock may be entitled to dividends at different dividend rates or
based upon different methods of determination. Except as provided in the
applicable Prospectus Supplement, no series of Preferred Stock will be
entitled to participate in the earnings or assets of the Company.
Rights Upon Liquidation
- -----------------------
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to shareholders, the amount stated or determined on the basis
set forth in the Prospectus Supplement relating to such series, which may
include accrued dividends, if such liquidation, dissolution or winding up
is involuntary or may equal the current redemption price per share
(otherwise than for the sinking fund, if any, provided for such series)
provided for such series set forth in such Prospectus Supplement, if such
liquidation, dissolution or winding up is voluntary, and on such
preferential basis as is set forth in such Prospectus Supplement. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, the amounts payable with respect to Preferred Stock of any series
and any other shares of stock of the Company ranking as to any such
distribution on a parity with such series of Preferred Stock are not paid
in full, the holders of Preferred Stock of such series and of such other
shares will share ratably in any such distribution of assets of the Company
in proportion to the full respective preferential amounts to which they are
entitled or on such other basis as is set forth in the applicable
Prospectus Supplement. The rights, if any, of the holders of any series of
Preferred Stock to participate in the assets of the Company remaining after
the holders of other series of Preferred Stock have been paid their
respective specified liquidation preferences upon any liquidation,
dissolution or winding up of the Company will be described in the
Prospectus Supplement relating to such series.
Redemption
- ----------
A series of Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times and the
redemption prices and for the types of consideration set forth in the
Prospectus Supplement relating to such series. The Prospectus Supplement
relating to a series of Preferred Stock which is subject to mandatory
redemption shall specify the number of shares of such series that shall be
redeemed by the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with
an amount equal to any accrued and unpaid dividends thereon to the date of
redemption. Except as indicated in the applicable Prospectus Supplement,
the Preferred Stock is not subject to any mandatory redemption at the
option of the holder.
Sinking Fund
- ------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, of a sinking fund for the purchase or redemption of that
series.
Conversion Rights
- -----------------
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into
shares of Common Stock or another series of Preferred Stock. The Preferred
Stock will have no preemptive rights.
Voting Rights
- -------------
Except as indicated in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
Georgia law, a holder of Preferred Stock will not be entitled to vote.
Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock, in the event the Company issues full shares of
any series of Preferred Stock, each such share will be entitled to one vote
on matters on which holders of such series of Preferred Stock are entitled
to vote.
Transfer Agent and Registrar
- ----------------------------
The transfer agent, registrar and dividend disbursement agent for a
series of Preferred Stock will be selected by the Company and be described
in the applicable Prospectus Supplement. The registrar for shares of
Preferred Stock will send notices to shareholders of any meetings at which
holders of Preferred Stock have the right to vote on any matter.
Outstanding Preferred Stock
- ---------------------------
SERIES A PREFERRED STOCK. The Series A Preferred Stock ranks senior to
the Common Stock, and pari passu with the Series B Preferred Stock, with
respect to payment of dividends and amounts upon liquidation, dissolution
or winding up. Holders of Series A Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available for payment, cumulative cash dividends at
the rate per annum of $1.75 per share of Series A Preferred Stock.
Dividends on the Series A Preferred Stock are payable quarterly in arrears
on the last calendar day of March, June, September and December of each
year.
Shares of Series A Preferred Stock are not redeemable by the Company
prior to June 30, 1998, and at no time are the shares of Series A Preferred
Stock redeemable for cash. On and after June 30, 1998, the shares of
Series A Preferred Stock are redeemable at the option of the Company, in
whole or in part, for such number of shares of Common Stock as equals the
liquidation preference of the Series A Preferred Stock to be redeemed
divided by the applicable conversion price as of the opening of business on
the date set for such redemption, subject to adjustment in certain
circumstances. The Company may exercise this option only if for 20 trading
days, within any period of 30 consecutive trading days, including the last
trading day of such period, the closing price of the Common Stock on the
New York Stock Exchange equals or exceeds the conversion price per share,
subject to adjustments in certain circumstances.
The holders of Series A Preferred Stock are entitled to receive in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, $25.00 per share of Series A Preferred Stock plus
an amount per share of Series A Preferred Stock equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to the date
of final distribution to such holders, and no more. Except under certain
circumstances or except as otherwise from time to time required by
applicable law, the holders of Series A Preferred Stock have no voting
rights.
SERIES B PREFERRED STOCK. The Series B Preferred Stock ranks senior to
the Common Stock, and pari passu with the Series A Preferred Stock, with
respect to payment of dividends and amounts upon liquidation, dissolution
or winding up. Holders of Series B Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available for payment, cumulative cash dividends at
the rate per annum of $2.205 per share of Series B Preferred Stock.
Dividends on the Series B Preferred Stock are payable quarterly in arrears
on the last calendar day of March, June, September and December of each
year.
Shares of Series B Preferred Stock are not redeemable by the Company
prior to October 31, 1999, and at no time are the shares of Series B
Preferred Stock redeemable for cash. On and after October 31, 1999, the
shares of Series B Preferred Stock are redeemable at the option of the
Company, in whole or in part, for such number of shares of Common Stock as
equals the liquidation preference of the Series B Preferred Stock to be
redeemed divided by the applicable conversion price as of the opening of
business on the date set for such redemption, subject to adjustment in
certain circumstances. The Company may exercise this option only if for 20
trading days, within any period of 30 consecutive trading days, including
the last trading day of such period, the closing price of the Common Stock
on the New York Stock Exchange equals or exceeds the conversion price per
share, subject to adjustments in certain circumstances.
The holders of Series B Preferred Stock are entitled to receive in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, $25.00 per share of Series B Preferred Stock plus
an amount per share of Series B Preferred Stock equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to the date
of final distributions to such holders, and no more. Except under certain
circumstances or except as otherwise from time to time required by
applicable law, the holders of Series B Preferred Stock have no voting
rights.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of Common
Stock. Common Stock Warrants may be issued independently or together with
any other Offered Securities offered by any Prospectus Supplement and may
be attached to or separate from such Offered Securities. Each series of
Common Stock Warrants will be issued under a separate warrant agreement
(each, a "Warrant Agreement") to be entered into between the Company and a
warrant agent specified in the applicable Prospectus Supplement (the
"Warrant Agent"). The Warrant Agent will act solely as an agent of the
Company in connection with the Common Stock Warrants of such series and
will not assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of Common Stock Warrants. The
following sets forth certain general terms and provisions of the Common
Stock Warrants offered hereby. Further terms of the Common Stock Warrants
and the applicable Warrant Agreements will be set forth in the applicable
Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the
Common Stock Warrants in respect of which this Prospectus is being
delivered, including, where applicable, the following: (1) the title of
such Common Stock Warrants; (2) the aggregate number of such Common Stock
Warrants: (3) the price or prices at which such Common Stock Warrants will
be issued; (4) the designation, number and terms of the shares of Common
Stock purchasable upon exercise of such Common Stock Warrants; (5) the
designation and terms of the other Offered Securities with which such
Common Stock Warrants are issued and the number of such Common Stock
Warrants issued with each such Offered Security; (6) the date, if any, on
and after which such Common Stock Warrants and the related Common Stock
will be separately transferable; (7) the price at which each share of
Common Stock purchasable upon exercise of such Common Stock Warrants may be
purchased; (8) the date on which the right to exercise such Common Stock
Warrants shall commence and the date on which such right shall expire; (9)
the minimum or maximum amount of such Common Stock Warrants which may be
exercised at any one time; (10) information with respect to book-entry
procedures, if any; (11) a discussion of certain federal income tax
considerations; and (12) any other terms of such Common Stock Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Common Stock Warrants.
DESCRIPTION OF DEPOSITARY SHARES
The Company may, at its option, elect to offer receipts for fractional
interests ("Depositary Shares") in Preferred Stock. In such event,
receipts ("Depositary Receipts") for Depositary Shares, each of which will
represent a fraction (to be set forth in the Prospectus Supplement relating
to a particular series of Preferred Stock) of a share of a particular
series of Preferred Stock, will be issued as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit
Agreement") between the Company and the depositary named in the Prospectus
Supplement relating to such shares (the "Preferred Stock Depositary").
Subject to the terms of the Deposit Agreement, each owner of a Depositary
Share will be entitled, in proportion to the applicable fraction of a share
of Preferred Stock represented by such Depositary Share, to all the rights
and preferences of the Preferred Stock represented thereby (including
dividend, voting, redemption, subscription and liquidation rights). The
following summary of certain provisions of the Deposit Agreement does not
purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the Deposit Agreement, including the
definitions therein of certain terms. Whenever particular sections of the
Deposit Agreement are referred to, it is intended that such sections shall
be incorporated herein by reference. Copies of the forms of Deposit
Agreement and Depositary Receipt are filed as exhibits to the Registration
Statement of which this Prospectus is a part, and the following summary is
qualified in its entirety by reference to such exhibits.
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions received in respect of the Preferred Stock to the
record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
(Deposit Agreement, Section 4.01)
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares in an equitable manner, unless the Preferred Stock
Depositary determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may sell such property and
distribute the net proceeds from such sale to such holders. (Deposit
Agreement, Section 4.02)
Upon surrender of the Depositary Receipts at the corporate trust office
of the Preferred Stock Depositary and upon payment of the taxes, charges
and fees provided for in the Deposit Agreement and subject to the terms
thereof, the holder of the Depositary Shares evidenced thereby is entitled
to delivery at such office, to or upon his or her order, of the number of
whole shares of the related series of Preferred Stock and any money or
other property, if any, represented by such Depositary Shares.
If a series of Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Preferred Stock Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by
the Preferred Stock Depositary. The redemption price per Depositary Share
will be equal to the applicable fraction of the redemption price per share
payable with respect to such series of the Preferred Stock. Whenever the
Company redeems shares of Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same
redemption date the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If fewer than all the Depositary Shares are
to be redeemed, the Depositary Shares to be redeemed will be selected by
lot, pro rata or by any other equitable method as may be determined by the
Preferred Stock Depositary. (Deposit Agreement, Section 2.08)
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Preferred Stock Depositary will
mail the information contained in such notice of meeting to the record
holders of the Depositary Shares relating to such Preferred Stock. Each
record holder of such Depositary Shares on the record date (which will be
the same date as the record date for the Preferred Stock) will be entitled
to instruct the Preferred Stock Depositary as to the exercise of the voting
rights pertaining to the amount of the Preferred Stock represented by such
holder's Depositary Shares. The Preferred Stock Depositary will endeavor,
insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions,
and the Company will agree to take all reasonable action which may be
deemed necessary by the Preferred Stock Depositary in order to enable the
Preferred Stock Depositary to do so. The Preferred Stock Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock. (Deposit Agreement, Section 4.05)
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any
amendment which materially and adversely alters the rights of the holders
of Depositary Shares will not be effective unless such amendment has been
approved by the holders of at least a majority of the Depositary Shares
then outstanding. (Deposit Agreement, Section 6.01) The Deposit Agreement
will only terminate if (i) all outstanding Depositary Shares have been
redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding-up
of the Company and such distribution has been distributed to the holders
of Depositary Receipts. (Deposit Agreement, Section 6.02)
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements.
The Company will pay charges of the Preferred Stock Depositary in
connection with the initial deposit of the Preferred Stock and issuance of
Depositary Receipts, all withdrawals of shares of Preferred Stock by owners
of Depositary Shares and any redemption of the Preferred Stock. Holders of
Depositary Receipts will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in
the Deposit Agreement to be for their accounts. (Deposit Agreement,
Section 5.07)
The Preferred Stock Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any
time remove the Preferred Stock Depositary, any such resignation or removal
to take effect upon the appointment of a successor Preferred Stock
Depositary and its acceptance of such appointment. Such successor
Preferred Stock Depositary must be appointed within 60 days after delivery
of the notice of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000. (Deposit Agreement, Section
5.04)
The Preferred Stock Depositary will forward all reports and
communications from the Company which are delivered to the Preferred Stock
Depositary and which the Company is required or otherwise determines to
furnish to the holders of the Preferred Stock. (Deposit Agreement, Section
4.07)
Neither the Preferred Stock Depositary nor the Company will be liable
under the Deposit Agreement to holders of Depositary Receipts other than
for its negligence, willful misconduct or bad faith. Neither the Company
nor the Preferred Stock Depositary will be obligated to prosecute or defend
any legal proceeding in respect of any Depositary Shares or Preferred Stock
unless satisfactory indemnity is furnished. The Company and the Preferred
Stock Depositary may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting Preferred Stock for
deposit, holders of Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine. (Deposit Agreement,
Section 5.03)
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through underwriters
or may sell the Offered Securities to investors directly or through
designated agents. Any such underwriter or agent involved in the offer and
sale of the Offered Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Offered Securities 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. The Company also may, from time to time,
authorize underwriters acting as agents to offer and sell the Offered
Securities upon the terms and conditions set forth in any Prospectus
Supplement. In connection with the sale of Offered Securities,
underwriters may be deemed to have received compensation from the Company
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 (which may be changed from time to time) from the
underwriters and from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters 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 the applicable Prospectus
Supplement. Underwriters, 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 entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit offers by
certain institutions to purchase Offered Securities from the Company 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 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
which 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 the Company. Contracts will not be
subject to any conditions except (i) the purchase by an institution of the
Offered Securities covered by its Contract 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 and (ii) the Company shall have
sold to such underwriters the total principal amount of the Offered
Securities less the principal amount thereof covered by Contracts. A
commission indicated in the Prospectus Supplement will be paid to agents
and underwriters soliciting purchases of Offered Securities pursuant to
Contracts accepted by the Company. Agents and underwriters shall have no
responsibility in respect of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with, and perform services for, the Company in the
ordinary course of business.
EXPERTS
The audited financial statements and schedules of the Company
incorporated by reference in this Prospectus and elsewhere in the
registration statement of which this Prospectus is a part, have been
audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated
herein in reliance upon the authority of said firm as experts in giving
said reports.
LEGAL OPINIONS
Certain legal opinions relating to tax matters and the Offered
Securities will be passed upon for the Company by Hull, Towill, Norman &
Barrett, P.C., Augusta, Georgia. Certain legal matters relating to the
validity of the Offered Securities will be passed upon for the Underwriters
by Piper & Marbury, Baltimore, Maryland. W. Hale Barrett, a member of the
firm of Hull, Towill, Norman & Barrett, P.C., is a director and secretary
of the Company. He and members of his firm own 25,751 shares of the
Company's Common Stock.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of the estimated amounts of
expenses in connection with the issuance and distribution of the securities
to be registered hereby, other than underwriting discounts and commissions.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee . . . $ 137,932
Blue Sky fees and expenses. . . . . . . . . . . . . . . . $ 40,000
Accounting fees and expenses. . . . . . . . . . . . . . . $ 205,000
Legal fees and expenses . . . . . . . . . . . . . . . . . $ 150,000
Trustee's fees and expenses . . . . . . . . . . . . . . . $ 30,000
Printing and engraving. . . . . . . . . . . . . . . . . . $ 100,000
Transfer Agent Fees . . . . . . . . . . . . . . . . . . . $ 10,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . $ 5,000
---------
Total $ 678,000
=========
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation contain the following
provisions:
(a) No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of his duty
of care or other duty as a director, provided that this provision shall
eliminate or limit the liability of a director only to the maximum extent
permitted by the Georgia Business Corporation Code or any successor law.
(b) Any repeal or modification of Section 11 by the shareholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
The Registrant's By-laws include the following indemnification
provisions:
(a) The corporation shall indemnify any person who was or is
threatened to be made a party to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (by reason of the fact that he is or was a director of the
corporation (as used in this Article VII, "director" shall have the meaning
set forth in O.C.G.A. (S) 14-2-850(2)), 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 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 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.
No indemnification under this subsection (a) shall be made:
i) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
ii) In connection with any other proceeding in which he was
adjudged liable on the basis that personal benefit was
improperly received by him.
(b) The corporation shall 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 he is or was a director, 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; no indemnification
under this subsection (b) 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, or is subjected to injunctive relief in favor of the
corporation:
i) For any appropriation, in violation of his duties, of any
business opportunity of the corporation;
ii) For acts or omissions which involve intentional misconduct or
a knowing violation of law;
iii) For the types of liability set forth in Code Section 14-2-832;
or
iv) For any transaction from which he received an improper
personal benefit, unless and only to the extent that the
court in which such action or suit was brought shall
determine upon application that, despite 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 shall deem proper (see
amendment to articles of incorporation dated May 3, 1988).
(c) To the extent that a director of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Article, 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 paragraphs (a) and (b) of this Article,
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, is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if a quorum cannot be obtained under
paragraph (1) of this subsection, by majority vote of a committee duly
designated by the board of directors (in which designation directors who
are parties may participate), consisting solely of two or more directors
not at the time parties to the proceeding; (3) by special legal counsel:
(a) selected by the board of directors of its committee in the manner
prescribed in paragraph (1) or (2) of this subsection; or (b) if a quorum
of the board of directors cannot be obtained under paragraph (1) of this
subsection and a committee cannot be designated under paragraph (2) of this
subsection, selected by majority vote of the full board of directors (in
which selection directors who are parties may participate); or (4) by the
shareholders, but shares owned by or voted under the control of directors
who are at the time parties to the proceeding may not be voted on the
determination; (5) authorization of indemnification or an obligation to
indemnify and evaluation as to reasonableness or expenses shall be made in
the same manner as the determination that indemnification is permissible;
except that if the determination is made by special legal counsel,
authorization or indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under paragraph (3) above to
select counsel.
(e) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding only if:
(i) The director furnishes the corporation a written
affirmation of his good faith belief that his conduct does
not constitute behavior of the kind described in subsection
(b) of this Code section; and
(ii) The director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay any advances if
it is ultimately determined that he is not entitled to
indemnification under this Code section.
(f) If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the
shareholders or by an insurance carrier pursuant to insurance maintained by
the corporation, the corporation shall, not later than the next annual
meeting of the shareholders, unless such meeting is held within three (3)
months from the date of such payment, and, in any event, within fifteen
(15) months from the date of such payment, send (by personal delivery or
first class mail, or such other means as is authorized by O.C.G.A. Section
14-2-113) to its shareholders of record at the time entitled to vote for
the election of directors, a statement specifying the persons paid, the
amounts paid, and the nature and status at the time of such payment of the
litigation or threatened litigation.
(g) For purposes of this Article, reference to "the corporation"
shall be as defined in Section 14-2-850 O.C.G.A.
(h) The indemnification and advancement of expenses provided by or
granted pursuant to this Article shall, unless otherwise provided when a
director's term is terminated, continue as to a person who has ceased to be
a director, and shall inure to the benefit of the heirs, executors and
administrator of such a person.
Item 16. Exhibits.
1(a) Form of Underwriting Agreement for Debt Securities**
1(b) Form of Underwriting Agreement for Common Stock**
1(c) Form of Underwriting Agreement for Common Stock Warrants*
1(d) Form of Underwriting Agreement for Preferred Stock**
1(e) Form of Underwriting Agreement for Depositary Shares*
4(a) Articles of Incorporation (filed as Exhibit 3(i) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993
and incorporated by reference herein)
4(b) Articles of Amendment to Articles of Incorporation (filed as
Exhibit 1 to the Company's Current Report on Form 8-K/A filed
January 24, 1995 amending the Company's current report on Form
8-K filed on November 3, 1994, and incorporated by reference
herein)
4(c) Bylaws (filed as Exhibit 3(ii) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993 and incorporated
by reference herein)
4(d) Form of Senior Indenture (Form of Senior Security included
therein)
4(e) Form of Subordinate Indenture (Form of Subordinate Security
included therein)
4(f) Form of Common Stock Certificate**
4(g) Form of Preferred Stock Certificate*
4(h) Form of Common Stock Warrant Agreement
4(i) Form of Deposit Agreement**
5 Opinion of Hull, Towill, Norman & Barrett, P.C. as to the
legality of the Offered Securities
12(a) Compuation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Dividends**
23(a) Consent of Hull, Towill, Norman & Barrett, P.C. (included in
Exhibit 5)
23(b) Consent of Arthur Andersen LLP
25(a) Statement of Eligibility and Qualification of Senior Trustee on
Form T-1
25(b) Statement of Eligibility and Qualification of Subordinate Trustee
on Form T-1
- ---------
* To be incorporated by reference in connection with the offering of
Offered Securities.
** Previously Filed.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus
any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement; provided, however, that
the undertakings set forth in subparagraphs (i) and (ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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 Section 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 provisions referred to under Item
15 hereof, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in
the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application
for purposes of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
<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 Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Augusta, State of Georgia, on February 8, 1995.
Merry Land & Investment
Company, Inc.
By: /S/
-----------------------
As Its President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed, by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board and
/S/ Chief Executive Officer February 8, 1995
- -------------------------
Peter S. Knox III
President and
/S/ Chief Financial Officer February 8, 1995
- -------------------------
W. Tennent Houston
/S/ Secretary and Director February 8, 1995
- -------------------------
W. Hale Barrett
/S/ Director February 8, 1995
- -------------------------
Pierce Merry, Jr.
/S/ Director February 8, 1995
- -------------------------
Hugh Calvin Long II
/S/ Controller February 8, 1995
- -------------------------
Ronald J. Benton
MERRY LAND & INVESTMENT COMPANY, INC.
TO
[ ]
Trustee
Indenture
Dated as of February 1, 1995
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . .1
Acquired Debt . . . . . . . . . . . . . . . . . .2
Act . . . . . . . . . . . . . . . . . . . . . . .2
Additional Amounts. . . . . . . . . . . . . . . .2
Affiliate . . . . . . . . . . . . . . . . . . . .2
Annual Service Charge . . . . . . . . . . . . . .2
Authenticating Agent. . . . . . . . . . . . . . .2
Authorized Newspaper. . . . . . . . . . . . . . .2
Bankruptcy Law. . . . . . . . . . . . . . . . . .3
Bearer Security . . . . . . . . . . . . . . . . .3
Board of Directors. . . . . . . . . . . . . . . .3
Board Resolution. . . . . . . . . . . . . . . . .3
Business Day. . . . . . . . . . . . . . . . . . .3
Capital Stock . . . . . . . . . . . . . . . . . .3
[CEDEL. . . . . . . . . . . . . . . . . . . . . 3]
Commission. . . . . . . . . . . . . . . . . . . .3
Common Depository . . . . . . . . . . . . . . . .3
Company . . . . . . . . . . . . . . . . . . . . .3
Company Request and Company Order . . . . . . . .3
Consolidated Income Available for Debt Service. .4
Conversion Event. . . . . . . . . . . . . . . . .4
Corporate Trust Office. . . . . . . . . . . . . .4
corporation . . . . . . . . . . . . . . . . . . .4
coupon. . . . . . . . . . . . . . . . . . . . . .4
Custodian . . . . . . . . . . . . . . . . . . . .4
[Debt . . . . . . . . . . . . . . . . . . . . . 4]
Defaulted Interest. . . . . . . . . . . . . . . .4
Disqualified Stock. . . . . . . . . . . . . . . .4
Dollar or $ . . . . . . . . . . . . . . . . . . .5
DTC . . . . . . . . . . . . . . . . . . . . . . .5
[ECU. . . . . . . . . . . . . . . . . . . . . . 5]
[Euroclear. . . . . . . . . . . . . . . . . . . 5]
[European Communities . . . . . . . . . . . . . 5]
[European Monetary System . . . . . . . . . . . 5]
Event of Default. . . . . . . . . . . . . . . . .5
Exchange Act. . . . . . . . . . . . . . . . . . .5
Foreign Currency. . . . . . . . . . . . . . . . .5
Funds from Operations . . . . . . . . . . . . . .5
GAAP. . . . . . . . . . . . . . . . . . . . . . .6
Government Obligations. . . . . . . . . . . . . .6
Hedging Obligations . . . . . . . . . . . . . . .6
Holder. . . . . . . . . . . . . . . . . . . . . .6
Indenture . . . . . . . . . . . . . . . . . . . .6
Indexed Security. . . . . . . . . . . . . . . . .7
interest. . . . . . . . . . . . . . . . . . . . .7
Interest Payment Date . . . . . . . . . . . . . .7
Make-Whole Amount . . . . . . . . . . . . . . . .7
Maturity. . . . . . . . . . . . . . . . . . . . .7
Officers' Certificate . . . . . . . . . . . . . .7
Opinion of Counsel. . . . . . . . . . . . . . . .7
Original Issue Discount Security. . . . . . . . .7
Outstanding . . . . . . . . . . . . . . . . . . .8
Paying Agent. . . . . . . . . . . . . . . . . . .9
Person. . . . . . . . . . . . . . . . . . . . . .9
Place of Payment. . . . . . . . . . . . . . . . .9
Predecessor Security. . . . . . . . . . . . . . .9
Redemption Date . . . . . . . . . . . . . . . . .9
Redemption Price. . . . . . . . . . . . . . . . .9
Registered Security . . . . . . . . . . . . . . .9
Regular Record Date . . . . . . . . . . . . . . 10
Repayment Date. . . . . . . . . . . . . . . . . 10
Repayment Price . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . 10
Securities Act. . . . . . . . . . . . . . . . . 10
Security. . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar. . . . 10
Significant Subsidiary. . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . 10
Subsidiary. . . . . . . . . . . . . . . . . . . 10
[Total Assets . . . . . . . . . . . . . . . . .11]
Trust Indenture Act or TIA. . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . 11
[Undepreciated Real Estate Assets . . . . . . .11]
United States . . . . . . . . . . . . . . . . . 11
United States person. . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions. . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee. . . . . 12
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company . . . . . 14
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . 15
SECTION 107. Effect of Headings and Table of Contents. . . . 16
SECTION 108. Successors and Assigns. . . . . . . . . . . . . 16
SECTION 109. Separability Clause . . . . . . . . . . . . . . 16
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . 16
SECTION 111. No Personal Liability . . . . . . . . . . . . . 16
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 17
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . 17
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication 18
SECTION 203. Securities Issuable in Global Form. . . . . . . 18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . 19
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication Delivery and Dating . 23
SECTION 304. Temporary Securities. . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . .28
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . .31
SECTION 307. Payment of Interest; Interest Rights Preserved. 32
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 34
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . 35
SECTION 310. Computation of Interest . . . . . . . . . . . . 36
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . 36
SECTION 402. Application of Trust Funds. . . . . . . . . . . 37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . 38
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 39
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . 41
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . . 42
SECTION 506. Application of Money Collected. . . . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium or Make-Whole Amount,
if any, Interest and Additional Amounts. . . . .44
SECTION 509. Restoration of Rights and Remedies. . . . . . . 44
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . 44
SECTION 512. Control by Holders of Securities. . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 45
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . 45
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . 46
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . 47
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . 48
SECTION 604. May Hold Securities . . . . . . . . . . . . . . 48
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . 48
SECTION 606. Compensation and Reimbursement. . . . . . . . . 48
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . . . 49
SECTION 608. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . 49
SECTION 609. Acceptance of Appointment By Successor. . . . . 51
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . .52
SECTION 611. Appointment of Authenticating Agent . . . . . . 52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders. . 54
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . 54
SECTION 703. Reports by Company. . . . . . . . . . . . . . . 55
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . .55
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of
Company and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions. . . . . . . . . . . . . . . 56
SECTION 802. Rights and Duties of Successor Corporation. . . 56
SECTION 803. Officers' Certificate and Opinion of Counsel. . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . 57
SECTION 902. Supplemental Indentures With Consent of Holders 59
SECTION 903. Execution of Supplemental Indentures . . . . . 60
SECTION 904. Effect of Supplemental Indentures . . . . . . . 60
SECTION 905. Conformity with Trust Indenture Act . . . . . . 60
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . .60
SECTION 907. Notice of Supplemental Indentures . . . . . . . 60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or
Make Whole Amount, if any, Interest
and Additional Amounts. . . . . . . . . . . . . 61
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 61
SECTION 1003. Money for Securities Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1004. Limitations on Incurrence of Debt . . . . . . . 64
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . 65
SECTION 1006. Maintenance of Properties . . . . . . . . . . . 66
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . 66
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . 66
SECTION 1009. Provision of Financial Information. . . . . . . 66
SECTION 1010. Statement as to Compliance. . . . . . . . . . . 67
SECTION 1011. Additional Amounts. . . . . . . . . . . . . . . 67
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . 68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . 69
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . .69
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . 71
SECTION 1106. Securities Payable on Redemption Date . . . . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . 72
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . 73
SECTION 1203. Redemption of Securities for Sinking Fund . . . 73
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . 74
SECTION 1302. Repayment of Securities . . . . . . . . . . . . 74
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . 74
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable. . . . . . . . 75
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . 76
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . 76
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . 77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance 78
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . . . . . . 80
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . 81
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . 81
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . 81
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . 82
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . 83
SECTION 1506. Counting Votes and Recording Action of Meetings 84
SECTION 1507. Evidence of Action Taken by Holders . . . . . . 84
SECTION 1508. Proof of Execution of Instruments . . . . . . . 84
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as
amended (the "1939 Act"), and Indenture, dated as of February 1,
1995
Trust Indenture Act Section Indenture Section
(Section)310(a)(1) . . . . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 607(a)
(b). . . . . . . . . . . . . . . . . . . . . . . .607(b), 608
(Section)312(c). . . . . . . . . . . . . . . . . . . . . . . .701
(Section)314(a). . . . . . . . . . . . . . . . . . . . . . . .703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1010
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . .102
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(Section)315(b). . . . . . . . . . . . . . . . . . . . . . . .601
(Section)316(a)(last sentence) . . . . . . . .101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . .513
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .508
(Section)317(a)(i) . . . . . . . . . . . . . . . . . . . . . .503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . .504
(Section)318(a). . . . . . . . . . . . . . . . . . . . . . . .112
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . .112
__________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the
1939 Act, which Provides that the provisions of Sections 310
to and including 317 of the 1939 Act are a part of and govern
every qualified indenture, whether or not physically contained
therein.
<PAGE>
INDENTURE
INDENTURE, dated as of February 1, 1995, between MERRY LAND &
INVESTMENT COMPANY, INC., a Georgia corporation (hereinafter called
the "Company"), having its principal office at 624 Ellis Street,
August, Georgia 30903, and FIRST UNION NATIONAL BANK OF GEORGIA, a
national banking association, as Trustee hereunder (hereinafter
called the "Trustee"), having its Corporate Trust Office at 999
Peachtree Street, NE, Suite 1100, Atlanta, GA 30309.
RECITALS OF THE TRUST
The Company deems it necessary to issue from time to time for
its lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured and unsubordinated
indebtedness, and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to aggregate principal amount, to bear
interest at the rates or formulas, to mature at such times and to
have such other provisions as shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in Trust
Indenture Act Section 311, shall have the meanings assigned to them
in the rules of the Commission adopted under the Trust Indenture
Act;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
In addition, the following terms shall have the indicated
respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case,
other than Debt incurred in connection with, or in contemplation
of, such Person becoming a Subsidiary or such acquisition. Acquired
Debt shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security, under circumstances specified therein, to
be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Annual Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and original
issue discount of, Debt of the Company and its Subsidiaries and the
amount of dividends which are payable in respect of any
Disqualified Stock.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of
publication, customarily published on each Business Day, whether or
not published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used
or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means either (i) the Board of Directors
of the Company, the executive committee or any other committee of
that board duly authorized to act for it in respect hereof, or (ii)
one or more duly authorized officers of the Company to whom the
Board of Directors of the Company or a committee thereof has
delegated the authority to act with respect to the matters
contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors or a committee thereof,
and to be in full force and effect on the date of such
certification, and delivered to the Trustee or (ii) a certificate
signed by the authorized officer or officers of the Company to whom
the Board of Directors of the Company or a committee thereof has
delegated its authority (as described in the definition of Board of
Directors), and in each case, delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or
in the Securities, means, unless otherwise specified with respect
to any Securities pursuant to Section 301, any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions in that Place of Payment or particular
location are authorized or required by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests,
participations or other ownership interests (however designated) of
such Person and any rights (other than debt securities convertible
into or exchangeable for corporate stock), warrants or options to
purchase any thereof.
["CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.]
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or,
if at any time after execution of this instrument such Commission
is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on
such date.
"Common Depository" has the meaning specified in Section
304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
President or a Vice President of the Company, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any
period means Funds from Operations of the Company and its
Subsidiaries plus amounts which have been deducted for interest on
Debt of the Company and its Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency (other than the ECU or other currency unit) 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 (or composite
currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the 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 Suite 1100, 999 Peachtree Street N.E., Atlanta, GA
30309.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning set forth in Section 501.
["Debt" of the Company or any Subsidiary means any
indebtedness of the Company or any Subsidiary, whether or not
contingent, in respect of (without duplication) (i) borrowed money
or evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by
the Company or any Subsidiary, (iii) the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and
unpaid of the purchase price of any property or services, except
any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations under any title
retention agreement, (iv) the principal amount of all obligations
of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock, (v) every
Hedging Obligation or (vi) any lease of property by the Company or
any Subsidiary as lessee which is reflected on the Company's
consolidated balance sheet in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by
the Company or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), Debt of another
Person (other than the Company or any Subsidiary).]
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital
Stock (or by the terms of any security into which it is convertible
or for which it is exchangeable or exercisable), upon the happening
of any event or otherwise (i) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, (ii) is
convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to
the Stated Maturity of the series of Debt Securities.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the
time shall be legal tender for payment of public and private debts.
"DTC" means The Depository Trust Company.
["ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.]
["Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear
System.]
["European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic
Energy Community.]
["European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.]
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by
the Commission.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued
by the government of one or more countries other than the United
States of America or by any recognized confederation or association
of such governments.
["Funds from Operations" for any period means income before
gains (losses) on investments and sales of assets and extraordinary
items plus amounts which have been deducted, and minus amounts
which have been added, for the following (without duplication): (a)
provision for federal income taxes of the Company and its
Subsidiaries, (b) amortization of debt discount, (c) provision for
property depreciation and amortization, (d) the effect of any
noncash charge resulting from a change in accounting principles in
determining income before gains (losses) on investments and
extraordinary items for such period and (e) amortization of
deferred charges, as reflected in the financial statements of the
Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.]
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect
from time to time; provided, that solely for purposes of any
calculation required by the financial covenants contained herein,
"GAAP" shall mean generally accepted accounting principles as used
in the United States on the date hereof, applied on a consistent
basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which
issued the Foreign 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 of America or 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 of America 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 depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of
a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
["Hedging Obligations" means, with respect to any Person, all
obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements,
(ii) foreign exchange contracts, currency swap agreements or
similar agreements, and (iii) other agreements or arrangements
designed to protect such Person against fluctuations, or otherwise
to establish financial hedges in respect of, exchange rates,
currency rates or interest rates.]
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer thereof
and, when used with respect to any coupon, shall mean the bearer
thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person
is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original
issuance.
"Interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, shall mean interest payable after Maturity, and, when
used with respect to a Security which provides for the payment of
Additional Amounts pursuant to Section 1011, includes such
Additional Amounts.
"Interest Payment Date" means, when used with respect to any
Security, the Stated Maturity of an installment of interest on such
Security.
"Make-Whole Amount" means the amount, if any, in addition to
principal which is required by a Security, under the terms and
conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Company to the
Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment,
repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company or other counsel
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Trust) 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
other provision therefor satisfactory to the Trustee has been
made;
(iii) Securities, except solely to the extent provided in
Sections 1402 or 1403, as applicable, with respect to which
the Company has effected defeasance and/or covenant defeasance
as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the
Company; and
(v) Securities converted into Capital Stock of the Company
pursuant to or in accordance with this Indenture if the
terms of such Securities provide for convertibility
pursuant to Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required
by Trust Indenture Act Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to
Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent,
determined pursuant to Section 301 as of the date such Security is
originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii)
the principal amount of any Indexed Security that may be counted in
making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant
to Section 301, and (iv) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium or Make-Whole Amount, if any) or
interest on any Securities, or coupons on behalf of the Company, or
if no such Person is authorized, the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the
principal of (and premium or Make-Whole Amount, if any) and
interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date" means, when used with respect to any
Security to be redeemed in whole or in part, the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any
Security to be redeemed, the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security which is registered
in the Security Register.
"Regular Record Date" for the installment of interest payable
on any Interest Payment Date on the Registered Securities of or
within any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid or repurchased at the option of the Holder, the date
fixed for such repayment or repurchase by or pursuant to this
Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid or purchased at the option of the Holder, the
price at which it is to be repaid or repurchased by or pursuant to
this Indenture.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder by the
Commission.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting
as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning
stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of or within any
series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (within the meaning of Regulation S-X,
promulgated under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest
thereon, the date specified in such Security or a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (a) the voting
power of the voting equity securities or (b) the outstanding equity
interests of which are owned, directly or indirectly, by such
Person. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any
contingency.
["Total Assets" as of any date means the sum of (i) the
Company's Undepreciated Real Estate Assets and (ii) all other
assets of the Company determined in accordance with GAAP (but
excluding intangibles).]
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used
with respect to the Securities of or within any series shall mean
only the Trustee with respect to the Securities of that series.
["Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of any real estate
assets of the Company and its Subsidiaries on such date, before
depreciation and amortization determined on a consolidated basis in
accordance with GAAP.]
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of
America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual
who is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the
laws of the United States of or any state or the District of
Columbia 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, computed at
the time of issuance of a Security (or, if applicable, at the most
recent predetermination of interest on such Security) and as set
forth in such Security in accordance with generally accepted United
States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this
Indenture (including covenants, compliance with which constitute
conditions precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (excluding
certificates delivered pursuant to Section 1010) 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 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 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or
give an opinion as 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 an Opinion of
Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the opinion, certificate or representations with respect
to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificate or
representations 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
as to such factual matters is in the possession of the Company,
unless such counsel knows 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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof,
whether in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a
combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of
the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall
be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of 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 Registered Securities shall be proved by
the Security Register or by a certificate of the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed,
as depository, by any trust company, bank, banker or other
depository, 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 depository, or
exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by
some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is
no longer Outstanding. The ownership of Bearer Securities may also
be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be
the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith
and not later than the date such solicitation is completed. If such
a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the
Company in reliance thereon, whether or not notation of such action
is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to
or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as
provided 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 or irregularities in regular
mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification
to Holders of Registered Securities as shall be made with the
approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given if
published in an Authorized Newspaper in The City of New York and in
such other city or cities as may be specified in such Securities,
and if the Securities of such series are listed on any stock
exchange outside the United States, in any place at which such
Securities are listed on a securities exchange to the extent that
such securities exchange so requires, on a Business Day, such
publication to be not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice.
Any such notice shall be deemed to have been given on the date of
such publication or, if published more than once, on the date of
the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given with
the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any particular Holder of Bearer
Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect
to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided
herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in
the English language, except that any published notice may be in an
official language of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons
appertaining thereto, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and
the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or coupon
appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any
past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of
the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the laws of the State
of Georgia. This Indenture is subject to the provisions of the TIA
that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment 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 hereof), payment of interest or any
Additional Amounts or principal (and premium or Make-Whole Amount,
if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity, provided that
no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, and related coupons of each series,
shall be in substantially the forms as shall be established in or
pursuant to one or more indentures supplemental hereto or Board
Resolutions, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may
be produced in any other manner, all as determined by the officers
executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________, as Trustee
By:___________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of
such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section
303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in
the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery
or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium or Make-Whole Amount and interest on
any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the Holder
of such principal amount of Outstanding Securities represented by
a permanent global Security (i) in the case of a permanent global
Security in registered form, the Holder of such permanent global
Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to one or more Board
Resolutions, or indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following,
as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Company with respect to unissued
Securities of or within the series when issued from time to time):
(1) the title of the Securities of or within the series
(which shall distinguish the Securities of such series from all
other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of or within the series that may be authenticated and
delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of or within the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities
of or within the series shall be payable and the amount of
principal payable thereon;
(4) the rate or rates (which may be fixed or variable) at
which the Securities of or within the series shall bear interest,
if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal
of (and premium or Make-Whole Amount, if any), interest, if any,
on, and Additional Amounts, if any, payable in respect of,
Securities of or within the series shall be payable, any Registered
Securities of or within the series may be surrendered for
registration of transfer, exchange or conversion and notices or
demands to or upon the Company in respect of the Securities of or
within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which and other terms and conditions upon
which Securities of or within the series may be redeemed in whole
or in part, at the option of the Company, if the Company is to have
the option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of or within the series pursuant to any
sinking fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which or the date or
dates on which, the price or prices at which, the currency or
currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which
Securities of or within the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities of or within the series-shall be issuable and, if other
than the denomination of $5,000, the denomination or denominations
in which any Bearer Securities of or within the series shall be
issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of or within the series that
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 502 or, if applicable, the portion of
the principal amount of Securities of or within the series that is
convertible in accordance with the provisions of this Indenture, or
the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies
in which payment of the principal of (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if any, on the
Securities of or within the series shall be payable or in which the
Securities of or within the series shall be denominated;
(12) whether the amount of payments of principal of (and
premium or Make-Whole Amount, if any) or interest, if any, on the
Securities of or within the series may be determined with reference
to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices
or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium or Make Whole
Amount, if any) or interest or Additional Amounts, if any, on the
Securities of or within the series are to be payable, at the
election of the Company or a Holder thereof, in a currency or
currencies, currency unit or units or composite currency or
currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made, and
the time and manner of, and identity of the exchange rate agent
with responsibility for, determining the exchange rate between the
currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit
or units or composite currency or currencies in which such
Securities are to be so payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of or within 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 or covenants of the Company with respect to
Securities of or within the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(16) whether Securities of or within the series are to be
issuable as Registered Securities, Bearer Securities (with or
without coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities and the terms upon which
Bearer Securities of or within the series may be exchanged for
Registered Securities of or within the series and vice versa (if
permitted by applicable laws and regulations), whether any
Securities of or within the series are to be issuable initially in
temporary global form and whether any Securities of or within the
series are to be issuable in permanent global form (with or without
coupons) and, if so, whether beneficial owners of interests in any
such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of or within the series
are to be issuable as a global Security, the identity of the
depository for such series;
(17) the date as of which any Bearer Securities of or within
the series and any temporary global Security representing
Outstanding Securities of or within the series shall be dated if
other than the date of original issuance of the first Security of
the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date
for such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of or within the series and any provisions in
modification of, in addition to or in lieu of any of the provisions
of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates,
documents or conditions;
(21) if the Securities of or within the series are to be
issued upon the exercise of debt warrants, the time, manner and
place for such Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the
Securities of or within the series to any Holder who is not a
United States person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and
the terms of any such option);
(23) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into shares of Capital
Stock of the Company and the terms and conditions upon which such
conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price or rate and any
requirements relative to the reservation of such shares for
purposes of conversion); and
(24) if convertible, any applicable limitations on the
ownership or transferrability of the Capital Stock into which such
Securities are convertible; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as
permitted by Section 905(4) and (5)).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series, if any, shall be
substantially identical except, in the case of Registered or Bearer
Securities issued in global form, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution
or in any such 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.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such action(s)
shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the
delivery of the Company Order for authentication and delivery of
such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301.
With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of such series
other than Bearer Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its President or a Vice
President, under its corporate seal reproduced thereon, and
attested by its Secretary or an Assistant Secretary. The signature
of any of these officers on the Securities and coupons may be
manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on
the Securities.
Securities or coupons appertaining thereto bearing the manual
or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series, together with any coupon appertaining thereto, executed
by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to
Section 301 a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate to Euroclear or
CEDEL, as the case may be, in the form set forth in Exhibit A-1 to
this Indenture or such other certificate as may be specified with
respect to any series of Securities pursuant to Section 301, dated
no earlier than 15 days prior to the earlier of the date on which
such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security
and this Indenture. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached
and canceled.
If all of the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular Securities
of such series, such as interest rate or formula, maturity date,
date of issuance and date from which interest shall accrue. In
authenticating such Securities, and-accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon:
(i) an Opinion of Counsel complying with Section 102 and
stating that:
(a) the form or forms of such Securities and any coupons
have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have
been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed pursuant to such
procedures as may be specified therein, and executed and
delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance
with this Indenture and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and
binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to
general equitable principles and to such other matters as
may be specified therein; and
(ii) an Officers' Certificate complying with Section 102 and
stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Securities have been, or
will have been upon compliance with such procedures as may be
specified therein, complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default
with respect to such Securities shall have occurred and be
continuing.
The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties, obligations
or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to
be issued at one time, it shall not be necessary to deliver a
Company Order, an Opinion of Counsel or an Officers' Certificate
otherwise required pursuant to the preceding paragraph at the time
of issuance of each Security of such series, but such order,
opinion and certificate, with appropriate modifications to cover
such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security or the Security
to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued or sold by the
Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are
issued, in registered form, or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in
global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as
otherwise provided in or pursuant to a Board Resolution), if
temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by
any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series.
(b) Unless otherwise provided as contemplated in Section 301,
this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities
of DTC. If any such temporary Security is issued in global form,
then such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depository
or common depository (the "Common Depository"), for the benefit of
Euroclear and CEDEL.
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in an aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of
definitive Securities of or within the same series of authorized
denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall
be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in
such temporary global Security, upon such presentation by the
Common Depository, such temporary global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global
Security, if any, held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed
by CEDEL as to the portion of such temporary global Security, if
any, held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as
may be established pursuant to Section 301; and provided further
that definitive Bearer Securities shall be delivered in exchange
for a portion of a temporary global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the
Exchange Date when the account holder instructs Euroclear or CEDEL,
as the case may be, to request such exchange on his behalf and
delivers to Euroclear or CEDEL, as the case may be, a certificate
in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from. the offices of Euroclear or
CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of
such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the
same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated
by Section 301, interest payable on a temporary global Security on
an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear
or CEDEL on such Interest Payment Date upon delivery by Euroclear
or CEDEL to the Trustee of a certificate or certificates in the
form set forth in Exhibit A-2 to this Indenture (or in such other
forms as may be established pursuant to Section 301), for credit
without further interest on or after such Interest Payment Date to
the respective accounts of Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and
who have each delivered to Euroclear or CEDEL, as the case may be,
a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set
forth as Exhibit A-1 to this Indenture (or in such other forms as
may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made
pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b)
and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification
was made will be exchanged for definitive Securities of the same
series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal or interest
owing with respect to a beneficial interest in a temporary global
Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest
in a definitive Security. Any interest so received by Euroclear or
CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee or in any office or agency of the Company in
a Place of Payment a register for each series of Securities (the
registers maintained in such office or in any such office or agency
of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities
and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Trustee,
at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security
Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times and to require that
a copy of the Security Register in written form be delivered to it
from time to time as reasonably requested.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any
series at any office or agency of the Company 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 and of a like aggregate
principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series, of any
authorized denomination or denominations and of a like aggregate
principal amount, containing identical terms and provisions, upon
surrender of the Registered Securities to be exchanged at any such
office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in
exchange for Registered Securities.
If (but only if) permitted as contemplated by Section 301, at
the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of
a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such permitted
exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency
in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment
Date or proposed date for payment, as the case may be, and interest
or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall
be exchangeable only as provided in this paragraph. If the
depository for any permanent global Security is DTC, then, unless
the terms of such global Security expressly permit such global
Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not
in part, only to a nominee of DTC, or by a nominee of DTC to DTC,
or to a successor to DTC for such global Security selected or
approved by the Company or to a nominee of such successor to DTC.
If at any time DTC notifies the Company that it is unwilling or
unable to continue as depository for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act if so required by applicable law
or regulation, the Company shall appoint a successor depository
with respect to such global Security or Securities. If (x) a
successor depository for such global Security or Securities is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such unwillingness, inability or
ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented
by such global Security or Securities advise DTC to cease acting as
depository for such global Security or Securities or (z) the
Company, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued
or issuable in the form of one or more global Securities shall no
longer be represented by such global Security or Securities
(provided, however, the Company may not make such determination
during the 40-day restricted period provided by Regulation S under
the Securities Act or during any other similar period during which
the Securities must be held in global form as may be required by
the Securities Act), then the Company shall execute, and the
Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such
global Security or Securities. If any beneficial owner of an
interest in a permanent global Security is otherwise entitled to
exchange such in interest for Securities of such series and of like
tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and
provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities in
aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On
or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depository as shall be specified in
the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such
exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for
redemption; and provided further that no Bearer Security delivered
in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States.
If a Registered Security is issued in exchange for any portion of
a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any
Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if such
Securities are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is
no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in
the case of any Registered Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue or to
register the transfer or exchange of any Security which has been
surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee or the
Company, together with, in proper cases, such security or indemnity
as may be required by the Company or the Trustee to save each of
them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon, and (ii) such security or
indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of actual
notice to the Company or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or
in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost
or stolen), a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
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,
with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen coupon appertains, pay such Security
or coupon; provided, however, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any
Additional Amounts with respect to, Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, 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 coupons, if
any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301,
interest on any Registered Security that 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 of the Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest
on any Registered Security may at the Company's option be paid by
(i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee
located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be
made, in the case of a Bearer Security, by transfer to an account
maintained by the payee with a bank located outside the United
States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any,
payable on any Interest Payment Date will be paid to DTC, Euroclear
and/or CEDEL, as the case may be, with respect to that portion of
such permanent global Security held for its account by Cede & Co.
or the Common Depository, as the case may be, for the purpose of
permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such
series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date 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.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any
interest on any Registered Security of any series that 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 registered Holder thereof 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
Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder
of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Company, cause a similar notice
to be published at least once in an Authorized Newspaper in each
place of payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security of any series
is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment 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.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium or
Make-Whole Amount, if any), and (subject to Sections 305 and 307)
interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Holder of any
Bearer Security and the Holder of any coupon as the absolute owner
of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes
whatsoever. whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by
any depository, as a Holder, with respect to such global Security
or impair, as between such depository and owners of beneficial
interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository
(or its nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and
Securities and coupons surrendered directly to the Trustee for any
such purpose shall be promptly canceled by it. The Company may at
any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. If the Company
shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the
same are surrendered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted
by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall
deliver a certificate of such destruction to the Company, unless by
a Company Order the Company directs their return to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
with respect to Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified
in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1011), and the Trustee, upon
receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons of such
series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by the
Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or
currencies 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 (and premium or Make-Whole
Amount, if any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the case of
Securities which have become due and payable)or the Stated Maturity
or Redemption Date, as the case may be;
(2) The Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any
predecessor Trustee under Section 606, the obligations of the
Company to any Authenticating Agent under Section 611 and, if money
shall have been deposited with and held by the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003,
shall survive.
In the event that there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an
instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities of
a particular series as to which it is Trustee and if the other
conditions thereto are met.
SECTION 402. Application of Trust Fund.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to
the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and
Additional Amounts for whose payment such money has been deposited
with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating
to any series of Securities as contemplated pursuant to Section
301, "Event of Default," wherever used herein with respect to any
particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of or within
that series or of any coupon appertaining thereto, when such
interest, Additional Amounts or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of 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 continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money
borrowed by the Company (or by any Subsidiary, the repayment of
which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor), having an
aggregate principal amount outstanding of at least $10,000,000,
whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded
or annulled, within a period of 10 days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(6) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Company or any of its
Subsidiaries in an aggregate amount (excluding amounts covered by
insurance) in excess of $10,000,000 and such judgments, orders or
decrees remain undischarged, unstayed and unsatisfied in an
aggregate amount (excluding amounts covered by insurance) in excess
of $10,000,000 for a period of 30 consecutive days; or
(7) the Company or any Significant Subsidiary 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; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary and the order or decree
remains unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors and the term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities of that series
may declare the principal (or, if any Securities are Original Issue
Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of, and the
Make-Whole Amount, if any, on, all the Securities of that series to
be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any
such declaration such principal or specified portion thereof shall
become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite
currency in which the Securities of such series is payable (except
as otherwise specified pursuant to Section 301 for the Securities
of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all
Outstanding Securities of that series and any
related coupons;
(B) the principal of (and premium or Make-Whole Amount,
if any, on) any Outstanding Securities of that
series which have become due otherwise than by such
declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities;
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium
or Make-Whole Amount, if any) or interest on Securities of that
series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional
Amount 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 or Make-Whole Amount, if any, on) any Security of any
series at its Maturity, then the Company will, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities of such series and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and
premium or Make Whole Amount. if any) and interest and Additional
Amounts, with interest upon any overdue principal (and premium or
Make-Whole Amount, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue
installments of interest or Additional Amounts, if any, at the rate
or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Securities of such series
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 of such series, 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 and any related coupons by
such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of
overdue principal, premium or Make-Whole Amount, if any, or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of
such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or
coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security
or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.
All rights of action and claims under this Indenture or any of
the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has
been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on
account of principal (or premium or Make-Whole Amount, if any) or
interest and any Additional Amounts, upon presentation of the
Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 606,
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest
and any Additional Amounts payable, in respect of
which or for the benefit of which such money has
been collected, ratably, without preference or
priority of any kind, according to the aggregate
amounts due and payable on such Securities and
coupons for principal (and premium or Make-Whole
Amount, if any), interest and Additional Amounts,
respectively, and
THIRD: To the payment of the remainder, if any, to the
Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written-notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of
(and premium or Make-Whole Amount, if any) and (subject to Sections
305 and 307) interest on, and any Additional Amounts in respect of,
such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon 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 the Company, the
Trustee and the Holders of Securities and coupons shall, subject to
any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders
of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein (but the Trustee
shall have no obligation as to the determination of such undue
prejudice).
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole Amount,
if any) or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable
with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall
transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of
the principal of (or premium or Make-Whole Amount, if any) or
interest on or any Additional Amounts with respect to any Security
of such series, or in the payment of any sinking fund installment
with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of
the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character
specified in Section 501(4) 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. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an Event
of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through
315(d):
(1) the Trustee shall perform only such duties as are
expressly undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(3) 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 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(4) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(5) the Trustee may consult with counsel and as a condition
to the taking, suffering or omission of any action hereunder may
demand an Opinion of Counsel, and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(7) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon 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;
(8) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture. The Trustee shall not be
required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any coupons
shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities or
coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar,
Authenticating Agent 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 TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on, or
investment of, any money received by it hereunder.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder, including
extraordinary services rendered in connection with or during the
continuation of a default hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by it in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent
any such expense, disbursement or advance may be attributable to
its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability
or expense, arising out of or in connection with the acceptance or
administration of the trust or trusts or the performance of its
duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of it's powers or duties hereunder
except to the extent any such loss, liability or expense may be
attributable to its own negligence or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to
the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of (or premium or Make-Whole Amount, if any) or interest
on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus of at least $50,000,000 or is
a subsidiary of a corporation which shall be a Person that has a
combined capital and surplus of at least $50,000,000 and which
unconditionally guarantees the obligations of the Trustee
hereunder. If such Trustee or Person 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 Trustee or Person shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) 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
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written
request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge
or control of the Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee
with respect to all Securities, or (ii) subject to TIA Section
315(e), any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a
Security 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 Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to
the Securities of any series in the manner provided for notices to
the Holders of Securities in Section 106. Each notice shall include
the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on
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, subject nevertheless
to its claim, if any, provided for in Section 606.
(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, pursuant to
Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of 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 or coupons 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 or coupons so
authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities or coupons. In case any
Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate
and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication
of the Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial
redemption or repayment 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
Section 301, 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, having a combined capital and surplus of not
less than $25,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law
or the requirements of the aforesaid 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. In case 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 or within the series
with respect to which such Authenticating Agent will serve in the
manner set forth in Section 106. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent 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 the series designated therein
referred to in the within-mentioned Indenture.
___________________________, as Trustee
By:____________________________________
as Authenticating Agent
By:____________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Authenticating Agent
nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in accordance
with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after __________________ of each year
commencing with the first _________ after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit
by mail to all Holders of Securities as provided in TIA Section
313(c) a brief report dated as of such ________________ if required
by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and
to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in
such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Registered Securities of such series as
of such Regular Record Date, or if there is no Regular Record Date
for interest for such series of Securities, semi-annually, upon
such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the
Security Registrar, no such lists shall be required to be
furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all
or substantially all of its assets to, or merge with or into any
other Person, provided that in any such case, (i) either the
Company shall be the continuing entity, or the successor (if other
than the Company) entity shall be a Person organized and existing
under the laws of the United States or a State thereof and such
successor entity shall expressly assume the due and punctual
payment of the principal of (and premium or Make-Whole Amount, if
any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1011) on all of the Securities,
according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture
to be performed by the Company by supplemental indenture, complying
with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such Person and (ii) immediately after
giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company or any Subsidiary as a
result thereof as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or
conveyance and upon any such assumption by the successor entity,
such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in the
event of a lease, shall be relieved of any further obligation under
this Indenture and the Securities. Such successor entity thereupon
may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers of
the Company to the Trustee for authentication, and any Securities
which such successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as
may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted
under Section 801 is also subject to the condition that the Trustee
receive an Officers' Certificate and an Opinion of Counsel to the
effect that any such consolidation, merger, sale, lease or
conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions
precedent herein provided for relating to such transaction have
been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by or pursuant to a Board Resolution,
and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another -Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained; 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 for the benefit
of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are expressly
being included solely for the benefit of such series); provided,
however, that in respect of any such additional Events of Default
such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right
of the Holders of a majority in aggregate principal amount of that
or those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of or any premium, Make-Whole Amount or
Interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of any series of Securities, provided
that any such addition, change or elimination shall (i) neither (A)
apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such
provision, nor (B) modify the rights of the Holder of any such
Security with respect to such provision; or (ii) become effective
only when there is no Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and
301, including the provisions and procedures relating to Securities
convertible into Capital Stock; 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; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with the provisions of this Indenture or
to make any other changes, provided that in each case, such
provisions shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material
respect; or
(10) to close this Indenture with respect to the
authentication and delivery of additional series of Securities or
to qualify, or maintain qualification of, this Indenture under the
TIA; 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
Sections 401, 1402 and 1403; provided in each case that any such
action shall not adversely affect the interests of the Holders of
Securities of such series and any related coupons or any other
series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities and any related
coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium or Make-Whole Amount, if any, on) or any installment of
principal of or interest on, any Security; or reduce the principal
amount thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any premium or
Make-Whole Amount payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to
Section 1011 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal
of an Original Issue Discount Security or Make-Whole Amount, if
any, that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder
of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite
currency or currencies in which, the principal of any Security or
any premium or Make-Whole Amount or any Additional Amounts payable
in respect thereof or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after
the Redemption Date or the Repayment Date, as the case may be); or
(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 with respect to such
series (or compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in
this Indenture, or reduce the requirements of Section 1504 for
quorum or voting; or
(3) modify any of the provisions of this Section, Section 513
or Section 1012, except to increase the required percentage to
effect such action or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. 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 and that all conditions precedent to the execution of
such supplemental indenture have been complied with. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of
such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each
Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any, Interest and Additional
Amounts.
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 (and premium or Make-Whole Amount,
if any) and interest on and any Additional Amounts payable in
respect of the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining
thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable
in respect of Bearer Securities on or before Maturity, other than
Additional Amounts, if any, payable as provided in Section 1011 in
respect of principal of (or premium or Make-Whole Amount, if any,
on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as
are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company shall 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 or
conversion, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain: (A) in
the Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the
circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1011) or conversion;
provided, however, that if the Securities of that series are listed
on the Luxembourg Stock Exchange, The International Stock Exchange
or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in Luxembourg,
London or any other required city located outside the United
States, as the case may be, so long as the Securities of that
series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in each Place of Payment for that
series located outside the United States an office or agency where
any Securities of that series may be surrendered for registration
of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of each such
office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for
payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1011) at the
offices specified in the Security, in London, England, and the
Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, Make
Whole Amount or interest on or Additional Amounts in respect of
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if the
Securities of a series are payable in Dollars, payment of principal
of and any premium and interest on any Bearer Security (including
any Additional Amounts or Make-Whole Amount payable on Securities
of such series pursuant to Section 1011) shall be made at the
office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest, Additional
Amounts or Make-Whole Amount, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by
the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series and
related coupons, if any, may be presented or surrendered for any or
all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such
purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any
series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under
any other provision of the Indenture, then the Company will
maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of any Securities and any related
coupons, it will, on or before each due date of the principal of
(and premium or Make-Whole Amount, if any), or interest on or
Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit
or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make Whole
Amount, if any), or interest on or Additional Amounts in respect
of, any Securities of that series, deposit with a Paying Agent a
sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, Make-Whole Amount or
interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent other than the
Trustee 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 principal of
(and premium or Make-Whole Amount, if any) or interest on
Securities or Additional Amounts 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) in the making of any such
payment of principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of
(and premium or Make-Whole Amount, if any) or interest on, or any
Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and
premiums or Make-Whole Amount, if any), interest or Additional
Amounts has become due and payable shall be paid to the Company
upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
[SECTION 1004. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any Subsidiary
to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding
Debt of the Company and its Subsidiaries on a consolidated basis
determined in accordance with GAAP is greater than 60% of the sum
of (without duplication) (i) the Company's Total Assets as of the
end of the calendar quarter covered in the Company's Annual Report
on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt and (ii) the purchase price of
any real estate assets or mortgages receivable acquired, and the
amount of any securities offering proceeds received (to the extent
such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Debt), by the Company or any
Subsidiary since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such
additional Debt;
(b) In addition to the limitations set forth in subsection
(a) of this Section 1004, the Company will not, and will not permit
any Subsidiary to, incur any Debt if the ratio of Consolidated
Income Available for Debt Service to the Annual Service Charge for
the four consecutive fiscal quarters most recently ended prior the
date on which such additional Debt is to be incurred shall have
been less than 1.5, on a pro forma basis after giving effect
thereto and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Debt and any other Debt
incurred by the Company and its Subsidiaries since the first day of
such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of such period; (ii) the repayment or retirement of any
other Debt by the Company and its Subsidiaries since the first day
of such four-quarter period had been incurred, repaid or retired at
the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt
during such period); (iii) in the case of Acquired Debt or Debt
incurred in connection with any acquisition since the first day of
such four-quarter period, the related acquisition had occurred as
of the first day of such period with the appropriate adjustments
with respect to such acquisition being included in such pro forma
calculation; and (iv) in the case of any acquisition or disposition
by the Company or its Subsidiaries of any asset or group of assets
since the first day of such four-quarter period, whether by merger,
stock purchase or sale, or asset purchase or sale, such acquisition
or disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments with
respect to such acquisition or disposition being included in such
pro forma calculation.
(c) In addition to the limitation set forth in subsections
(a) and (b) of this Section 1004, the Company will not, and will
not permit any Subsidiary to, incur any Debt secured by any
mortgage, lien, charge, pledge, encumbrance or security interest of
any kind upon any of the property of the Company or any Subsidiary,
whether owned at the date hereof or hereafter acquired, if,
immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Company
and its Subsidiaries on a consolidated basis which is secured by
any mortgage, lien, charge, pledge, encumbrance or security
interest on property of the Company or any Subsidiary is greater
than 40% of the Company's Total Assets.
(d) For purposes of this Section 1004 Debt shall be deemed to
be "incurred" by the Company or a Subsidiary whenever the Company
or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.]
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory) and franchises
of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any right or franchise if
the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the
Holders of Securities of any series.
SECTION 1006. Maintenance of Properties.
The Company will cause all of its properties used or useful in
the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the
Company or any Subsidiary from selling or otherwise disposing of
for value its properties in the ordinary course of its business.
SECTION 1007. Insurance.
The Company will, and will cause each of its Subsidiaries to,
keep all of its insurable Properties insured against loss or damage
at least equal to their then full insurable value with financially
sound and reputable insurance companies.
SECTION 1008. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
SECTION 1009. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d)
of the Exchange Act, the Company will, to the extent permitted
under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to
such Section 13 or 15(d) (the "Financial Statements") if the
Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to
file such documents if the Company were so subject.
The Company will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their
names and addresses appear in the Security Register, without cost
to such Holders, copies of the annual reports and quarterly reports
which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if
the Company were subject to such Sections, and (ii) file with the
Trustee copies of annual reports, quarterly reports and other
documents which the Company would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections and (y) if filing such
documents by the Company with the Commission is not permitted under
the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such
documents to any prospective Holder.
SECTION 1010. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after
the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture
and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of
this Section 1010, such compliance shall be determined without
regard to any period of grace or requirement of notice under this
Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section
301. Whenever in this Indenture there is mentioned, in any context
except in the case of Section 502(1), the payment of the principal
of or any premium, Make-Whole Amount or interest on, or in respect
of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such
series established pursuant to Section 301 to the extent that, in
such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day
on which a payment of principal and any premium is made), and at
least 10 days prior to each date of payment of principal and any
premium or Make-Whole Amount or interest if there has been any
change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the
Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of or within the
series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will
pay to the Trustee or such Paying Agent the Additional Amounts, if
any, required by the terms of such Securities. In the event that
the Trustee or any Paying Agent, as the case may be, shall not so
receive the abovementioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of
principal or interest with respect to any Securities of a series or
related coupons until it shall have received a certificate advising
otherwise and (ii) to make all payments of principal and interest
with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to
1009, inclusive, and with any other term, provision or condition
with respect to the Securities of any series specified in
accordance with Section 301 (except any such term, provision or
condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if
before or after the time for such compliance the Holders of at
least a majority in principal amount of all outstanding Securities
of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect
of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the
Securities of any series, the Company shall, at least 45 days prior
to the giving of the notice of redemption in Section 1104 (unless
a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series issued on the
same day with the same terms are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities
selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 days nor more than 60 days prior to
the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each
Holder of Securities to be redeemed, but failure to give such
notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in
the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional
Amounts, if any;
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, 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;
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and
after said date;
(6) 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 of the Redemption Price and
accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the
case;
(8) 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 date fixed
for redemption 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 for such series
and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to the redemption on this Redemption Date
pursuant to Section 305 or otherwise, the last date, as determined
by the Company, on which such exchanges may be made;
(10) the CUSIP number of such Security, if any, provided that
neither the Company nor the Trustee shall have any responsibility
for any such CUSIP number; and
(11) if applicable, that a Holder of Securities who desires to
convert Securities to be redeemed must satisfy the requirements for
conversion contained in such Securities, the then existing
conversion price or rate and the date and time when the option to
convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company request, by the Trustee in
the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, which it may not do in the case of
a sinking fund payment under Article Twelve, segregate and hold in
trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) sufficient to pay on the Redemption
Date the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on that
date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest, if
any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that except as
otherwise provided with respect to Securities convertible into
Capital Stock, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or
Make-Whole Amount, if any) shall, until paid, bear interest from
the Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Twelve) shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of the
same series, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment."
If provided for by the terms of any Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a
series, (1) deliver Outstanding Securities of such series (other
than any previously called for redemption) together in the case of
any Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, as provided for by the terms of such
Securities, or which have otherwise been acquired by the Company;
provided that such Securities so delivered or applied as a credit
have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of
such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking payment date for
Securities of any series, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied
by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and
credited. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking
fund payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities, if any, and (except
as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise
provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereon, together with interest, if
any, thereof accrued to the Repayment Date specified in or pursuant
to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) sufficient to pay
the principal (or, if so provided by the terms of the Securities of
any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest
on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment"
form on the reverse of such Securities. In order for any Security
to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company
shall from time to time notify the Holders of such Securities) not
earlier than 60 days nor later than 30 days prior to the Repayment
Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the
Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option
to elect repayment is being exercised thereby and a guarantee that
the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, however, that such telegram,
telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee
by such fifth Business Day. If less than the entire principal
amount of such Security is to be repaid in accordance with the
terms of such Security, the principal amount of such Security to be
repaid, in increments of the minimum denomination for Securities of
such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum
authorized denomination of Securities of or within the series of
which such Security to be repaid is a part. Except as otherwise may
be provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as
provided in this Article and as provided by or pursuant to the
terms of such Securities, such Securities or the portions thereof,
as the case may be, to be repaid shall become due and payable and
shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment
Date) such Securities shall, if the same were interest bearing,
cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to
the extent provided below, shall be void. Upon surrender of any
such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such security so
to be repaid shall be paid by the Company, together with accrued
interest, if any, to the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and provided further
that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the
face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in
the preceding sentence, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal
amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment
Date at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid
.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or
both of (a) defeasance of the Securities of or within a series
under Section 1402 or (b) covenant defeasance of the Securities of
or within a series under Section 1403 to be applicable to the
Securities of any series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of
this Article (with such modifications thereto as may be specified
pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto,
and the Company may at its option by Board Resolution at any time,
with respect to such Securities and any coupons appertaining
thereto, elect to defease such Outstanding Securities and any
coupons appertaining thereto pursuant to Section 1402 (if
applicable) or Section 1403 (if applicable) upon compliance with
the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series,
the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any
coupons appertaining thereto on the date the conditions set forth
in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all
of 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 execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due,
(B) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by
Section 1011, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its
option under this Section notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities and any
coupons appertaining thereto.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series,
the Company shall be released from its obligations under Sections
1005 to 1009, inclusive, and, if specified pursuant to Section 301,
its obligations under any other covenant, with respect to such
Outstanding Securities and any coupons appertaining thereto on and
after the date the conditions set forth in Section 1404 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 1005 to 1009, inclusive,
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
Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
Section or 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 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 501(4) or 501(9) 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 1404. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2)
Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment
of principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof in an
amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto; provided, that the
Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such Government Obligations to said payments
with respect to such Securities. Before such a deposit, the Company
may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the
terms of the Securities of such series and Article Eleven hereof,
which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound (and shall not cause
the Trustee to have a conflicting interest pursuant to Section
310(b) of the TIA with respect to any Security of the Company).
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to
such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar
as Sections 501(7) and 501(8) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee 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 Outstanding 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, in the same manner and at
the same times as would have been the case if such defeasance had
not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Outstanding Securities and
any 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
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the- defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be)
have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of a deposit pursuant to subsection (a)
above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be) registration is
not required under the Investment Company Act of 1940, as amended,
by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.
(g) After the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally.
(h) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as
may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee")
pursuant to Section 1404 in respect of any Outstanding 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 (and premium or Make-Whole Amount,
if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section
1404(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect
pursuant to Section 301 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 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the
currency or currency unit in which the deposit pursuant to Section
1404(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 (and premium or Make-Whole Amount, 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 as
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,
except, with respect to a Conversion Event, for such currency or
currency unit in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other- than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in
Section 1404 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called
at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501,
to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in London for
such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum
for a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series,
be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less
than five (5) days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum. Except as limited by
the proviso to Section 902, any resolution presented to a meeting
or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by
the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of
such series and the related coupons, whether or not present or
represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities
of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this
Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining
whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and of
the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided
in Section 1502(b), in which case the Company or the Holders of
Securities of or within the series calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any series
shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy
of the notice of the meeting and showing that said notice was given
as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of the
Holders of any or all series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution of
any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a
Holder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the Trustee.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:
Name:
Title:
, as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be
delivered}
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our
account (i) are owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject
to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as "financial institutions") purchasing for their own account or
for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise
_______________________ or its agent that such financial
institution will provide a certificate within a reasonable time
stating that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are
owned by a financial institution for purposes of resale during the
restricted period (as defined in United States Treasury Regulations
Section 1.1635(c)(2)(i)(D)(7)), and, such financial institution
described in clause (iii) above (whether or not also described in
clause (i) or (ii)), certifies that it has not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification
relating to the above-captioned Securities held by you for our
account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this
certification applies as of such date. This certificate excepts
and does not related to {U.S.$} of such interest in the above-captioned
Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: _______________, 19___ {To be dated no earlier than the
15th day prior to the earlier of (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring prior to the Exchange
Date, as applicable}
{Name of Person Making
Certification}
(Authorized Signator)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be
delivered}
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or
by electronic transmission from each of the persons appearing in
our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, (U.S.$)
principal amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income
taxation regardless of its source-("United States person(s)"), (ii)
is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as
defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial
institution has agreed, on its own behalf or through its agent,
that we may advise _____________________________ or its agent that
such financial institution will provide a certificate within a
reasonable time stating that it agrees to comply with the
requirements of Section 165(j)(3)(A), (B), or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by a financial institution for purposes of resale
during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and that such
financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest)
any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:_________________________ , 19___
{To be dated no earlier than the earlier of the
Exchange Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as applicable}
,
as
By:
MERRY LAND & INVESTMENT COMPANY, INC.
TO
[ ]
Trustee
Indenture
Dated as of February 1, 1995
Subordinated Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Acquired Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
[CEDEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3]
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . . . . . . 3
Conversion Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
[ECU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4]
[Euroclear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4]
[European Communities . . . . . . . . . . . . . . . . . . . . . . . . .4]
[European Monetary System . . . . . . . . . . . . . . . . . . . . . . .4]
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . 6
Make-Whole Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Representative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar. . . . . . . . . . . . . . . . 9
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Significant Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . .10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . .10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . . . . . . . .10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
United States person. . . . . . . . . . . . . . . . . . . . . . . . . .10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 102. Compliance Certificates and Opinions. . . . . . . .11
SECTION 103. Form of Documents Delivered to Trustee. . . . . . .11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . .12
SECTION 105. Notices, etc., to Trustee and Company . . . . . . .14
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . .14
SECTION 107. Effect of Headings and Table of Contents. . . . . .15
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . .15
SECTION 109. Separability Clause . . . . . . . . . . . . . . . .15
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . .16
SECTION 111. No Personal Liability . . . . . . . . . . . . . . .16
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . .16
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . .16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . .17
SECTION 202. Form of Trustee's Certificate of Authentication . .17
SECTION 203. Securities Issuable in Global Form. . . . . . . . .17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . .18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . .22
SECTION 303. Execution, Authentication, Delivery and Dating. . .22
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . .25
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. .31
SECTION 307. Payment of Interest; Interest Rights Preserved. . .32
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . .34
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . .34
SECTION 310. Computation of Interest . . . . . . . . . . . . . .35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . .35
SECTION 402. Application of Company Funds. . . . . . . . . . . .37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . .37
SECTION 502. Acceleration of Maturity; Rescission and Annulment.39
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . .40
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . .41
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons. . . . . . . . . . . . . .42
SECTION 506. Application of Money Collected. . . . . . . . . . .42
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . .42
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts. . . . . . . .43
SECTION 509. Restoration of Rights and Remedies. . . . . . . . .43
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . .44
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . .44
SECTION 512. Control by Holders of Securities. . . . . . . . . .44
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . .44
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . .45
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . .45
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . .46
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . .46
SECTION 603. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . 47
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . .48
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . .48
SECTION 606. Compensation and Reimbursement. . . . . . . . . . .48
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . .49
SECTION 608. Resignation and Removal; Appointment of Successor .49
SECTION 609. Acceptance of Appointment By Successor. . . . . . .50
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . .52
SECTION 611. Appointment of Authenticating Agent . . . . . . . .52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders. . . .54
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . .54
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . .54
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . . .55
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions . . . . . . . . . . .55
SECTION 802. Rights and Duties of Successor Corporation. . . . .56
SECTION 803. Officers' Certificate and Opinion of Counsel. . . .56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.56
SECTION 902. Supplemental Indentures With Consent of Holders . .58
SECTION 903. Execution of Supplemental Indentures . . . . . . .59
SECTION 904. Effect of Supplemental Indentures . . . . . . . . .59
SECTION 905. Conformity with Trust Indenture Act . . . . . . . .60
SECTION 906. Reference in Securities to Supplemental Indentures.60
SECTION 907. Notice of Supplemental Indentures . . . . . . . . .60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make Whole
Amount, if any, Interest and Additional
Amounts . . . . . . . . . . . . . . . . . . . . . .60
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . .61
SECTION 1003. Money for Securities Payments to Be Held in Trust .62
SECTION 1004. {Omitted} . . . . . . . . . . . . . . . . . . . . .64
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . .64
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . .64
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . .64
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . . .64
SECTION 1009. Provision of Financial Information. . . . . . . . .65
SECTION 1010. Statement as to Compliance. . . . . . . . . . . . .65
SECTION 1011. Additional Amounts. . . . . . . . . . . . . . . . .65
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . .66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . .67
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . .67
SECTION 1103. Selection by Trustee of Securities to Be Redeemed .67
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . .68
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . .69
SECTION 1106. Securities Payable on Redemption Date . . . . . . .69
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . .70
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . .71
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . 71
SECTION 1203. Redemption of Securities for Sinking Fund . . . . .71
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . . .72
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . .72
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . .72
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable. . . . . . . . . . . . . . .73
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . .74
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. . . . . .74
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . .75
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . .75
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . .76
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions. . . . . . . . . . . . . . . . . . . . .78
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . . .79
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . .79
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . .80
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . . .80
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . .81
SECTION 1506. Counting Votes and Recording Action of Meetings . .82
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . .82
SECTION 1508. Proof of Execution of Instruments . . . . . . . . .83
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate. . . . . . . . . . . . . .83
SECTION 1602. Liquidation; Dissolution. . . . . . . . . . . . . .83
SECTION 1603. Default on Senior Debt. . . . . . . . . . . . . . .83
SECTION 1604. Acceleration of Securities. . . . . . . . . . . . .84
SECTION 1605. When Distribution Must Be Paid Over . . . . . . . .84
SECTION 1606. Notice by Company . . . . . . . . . . . . . . . . .84
SECTION 1607. Subrogation . . . . . . . . . . . . . . . . . . . .84
SECTION 1608. Relative Rights . . . . . . . . . . . . . . . . . .85
SECTION 1609. Subordination May Not Be Impaired by Company. . . .85
SECTION 1610. Distribution or Notice to Representative. . . . . .85
SECTION 1611. Rights of Trustee and Paying Agent. . . . . . . . .85
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as amended (the
"1939 Act"), and Indenture, dated as of February 1, 1995
Trust Indenture Act Section Indenture Section
(Section)310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .607(a)
(a) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .607(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607(b), 608
(Section)312 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(Section)314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1010
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(Section)315 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(Section)316 (a) (last sentence) . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(Section)317(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(Section)318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
__________________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which Provides that the provisions of Sections 310 to and including
317 of the 1939 Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
<PAGE>
INDENTURE
INDENTURE, dated as of February 1, 1995, between MERRY LAND &
INVESTMENT COMPANY, INC., a Georgia corporation (hereinafter called the
"Trust"), having its principal office at 624 Ellis Street, August, Georgia
30903, and First Union National Bank of Georgia, a national banking
association, as Trustee hereunder (hereinafter called the "Trustee"),
having its Corporate Trust Office at Suite 1100, 999 Peachtree Street,
N.E., Atlanta, GA 30309.
RECITALS OF THE TRUST
The Company deems it necessary to issue from time to time for its
lawful purposes subordinated debt securities (hereinafter called the
"Securities") evidencing its unsecured indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to aggregate
principal amount, to bear interest at the rates or formulas, to mature at
such times and to have such other provisions as shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in Trust Indenture Act Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles. In addition,
the following terms shall have the indicated respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be
incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security, under circumstances specified therein, to be paid by the
Company in respect of certain taxes imposed on certain Holders and which
are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of
each such place. Whenever successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in the
same or in different Authorized Newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means either (i) the Board of Directors of the
Company, the executive committee or any other committee of director of that
board duly authorized to act for it in respect hereof, or (ii) one or more
duly authorized officers of the Company to whom the Board of Directors of
the Company or a committee thereof has delegated the authority to act with
respect to the matters contemplated by this Indenture.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors or a committee thereof, and to be in full
force and effect on the date of such certification or a certificate signed
by the authorized officer or officers of the Company to whom the Board of
Directors of the Company or a committee thereof has delegated its authority
(as described in the definition of Board of Directors), and in each case
delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in that Place of Payment or particular location are authorized
or required by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights
(other than debt securities convertible into or exchangeable for corporate
stock), warrants or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Common Depository" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the President or a
Vice President of the Company, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency (other than the ECU or other currency unit) 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 (or composite currency) other than the ECU for the purposes for which
it was established.
"Corporate Trust Office" means the 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 Suite 1100, 999
Peachtree Street, N.E., Atlanta, GA 30309.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning set forth in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for payment of public and private debts.
"DTC" means The Depository Trust Company.
["ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.]
["Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.]
["European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.]
["European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.]
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government
of one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided, that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof,
applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign 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 of America or 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 of America 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
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted
by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section
1011, includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be
paid by the Company to the Holder thereof in connection with any optional
redemption or accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or other
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except solely to the extent provided in Sections
1402 or 1403, as applicable, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Article
Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Capital Stock of the Company pursuant
to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
are present at a meeting of Holders for quorum purposes, and for the
purpose of making the calculations required by Trust Indenture Act Section
313, (i) the principal amount of an Original Issue Discount Security that
may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount
of principal thereof that would be (or shall have been declared to be) due
and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 502, (ii) the
principal amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined pursuant to Section 301 as of the date such Security
is originally issued by the Company, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Indexed Security
pursuant to Section 301, and (iv) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities, or coupons on behalf of the Company, or if no such Person is
authorized, the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date" means, when used with respect to any Security to be
redeemed in whole or in part, the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the installment of interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid or purchased at the option of the Holder, the price at which it is
to be repaid or repurchased by or pursuant to this Indenture.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Debt.
"Responsible Officer" means, when used with respect to the Trustee,
any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities of or
within any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of and interest on, or substantially
similar payments to be made by the Company in respect of, the following,
whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) indebtedness of the Company
for money borrowed or represented by purchase-money obligations, (b)
indebtedness of the Company evidenced by notes, debentures, or bonds, or
other securities issued under the provisions of an indenture, fiscal agency
agreement or other instrument, (c) obligations of the Company as lessee
under leases of property either made as part of any sale and lease-back
transaction to which the Company is a party or otherwise, (d) indebtedness
of partnerships and joint ventures which is included in the Company's
consolidated financial statements, (e) indebtedness, obligations and
liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as
guarantor, endorser or otherwise or which the Company has agreed to
Purchase or otherwise acquire, and (f) any binding commitment of the
Company to fund any real estate investment or to fund any investment in any
entity making such real estate investment; but excluding, however, (1) any
such indebtedness, obligation or liability referred to in clauses (a)
through (f) above as to which, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment
to the Securities, or ranks par- passu with the Securities, (2) any such
indebtedness, obligation or liability which is subordinated to indebtedness
of the Company to substantially the same extent as or to a greater extent
than the Securities are subordinated and (3) the Securities. As used in the
preceding sentence the term "purchase-money obligations" shall mean
indebtedness or obligations evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest
but excluding indebtedness or obligations for which recourse is limited to
the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, but shall not include any trade accounts
payable. A distribution may consist of cash, securities or other property.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (within the meaning of Regulation S-X, promulgated under the
Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (a) the voting power of the voting
equity securities or (b) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having
voting power for the election of directors, whether at all times or only so
long as no senior class of security has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
or within any series shall mean only the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen
or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States of or
any state or the District of Columbia 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, computed at the time
of issuance of a Security (or, if applicable, at the most recent
predetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including covenants,
compliance with which constitute conditions precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished. Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding
certificates delivered pursuant to Section 1010) 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 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 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as 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 an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate
or representations with respect to the matters upon which his certificate
or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations 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 as to
such factual matters is in the possession of the Company, unless such
counsel knows 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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series,
as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are
issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, whether in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of 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 Registered Securities shall be proved by the
Security Register or by a certificate of the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository,
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 depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice
to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect
to other Holders of Registered Securities or the sufficiency of any notice
to Holders of Bearer Securities given as provided 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 or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall
constitute a sufficient notification to such Holders for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may
be specified in such Securities, and if the Securities of such series are
listed on any stock exchange outside the United States, in any place at
which such Securities are listed on a securities exchange to the extent
that such securities exchange so requires, on a Business Day, such
publication to be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any such notice
shall be deemed to have been given on the date of such publication or, if
published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any particular Holder of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons appertaining
thereto, express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had
against any promoter, as such or, against any past, present or future
shareholder, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the
issue of the Securities.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of Georgia. This
Indenture is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment 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 hereof),
payment of interest or any Additional Amounts or principal (and premium or
Make-Whole Amount, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date,
or at the Stated Maturity or Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or
more indentures supplemental hereto or Board Resolutions, shall have such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements placed thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or
to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel
engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________, as Trustee
By:___________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8)
of Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased
to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall
be specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable
Company Order. If a Company Order pursuant to Section 303 or 304 has been,
or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in
the case of a permanent global Security in registered form, the Holder of
such permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any
or all of the following, as applicable, each of which (except for the
matters set forth in clauses (1), (2) and (15) below), if so provided, may
be determined from time to time by the Company with respect to unissued
Securities of or within the series when issued from time to time):
(1) the title of the Securities of or within the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of or within the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of or within the series pursuant to Section 304, 305, 306, 906,
1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of or within the
series shall be payable and the amount of principal payable thereon;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of or within the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or dates
from which such interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which such
interest will be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment Date,
or the method by which such date shall be determined, and the basis upon
which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and Additional
Amounts, if any, payable in respect of, Securities of or within the series
shall be payable, any Registered Securities of or within the series may be
surrendered for registration of transfer, exchange or conversion and
notices or demands to or upon the Company in respect of the Securities of
or within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the currency
or currencies, currency unit or units or composite currency or currencies
in which and other terms and conditions upon which Securities of or within
the series may be redeemed in whole or in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of or within the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period or
periods within which or the date or dates on which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of or within the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of or within
the series-shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of or
within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of or within the series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 502 or, if applicable, the portion of the principal amount of
Securities of or within the series that is convertible in accordance with
the provisions of this Indenture, or the method by which such portion shall
be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or
within the series shall be payable or in which the Securities of or within
the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of or
within the series may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (and premium or Make Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or
within the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such Securities
are denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be made,
and the time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within 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 or covenants of the Company with respect to Securities of or
within the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of or within the
series may be exchanged for Registered Securities of or within the series
and vice versa (if permitted by applicable laws and regulations), whether
any Securities of or within the series are to be issuable initially in
temporary global form and whether any Securities of or within the series
are to be issuable in permanent global form (with or without coupons) and,
if so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and, if Registered Securities of or within the
series are to be issuable as a global Security, the identity of the
depository for such series;
(17) the date as of which any Bearer Securities of or within the
series and any temporary global Security representing Outstanding
Securities of or within the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of or within the series are to be issued upon
the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of or
within the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(23) the obligation, if any, of the Company to permit the conversion
of the Securities of such series into shares of Capital Stock of the
Company and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price or
rate, the conversion period, any adjustment of the applicable conversion
price or rate and any requirements relative to the reservation of such
shares for purposes of conversion);
(24) if convertible, any applicable limitations on the ownership or
transferability of the Capital Stock into which such Securities are
convertible; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 905(4) and (5)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global
form, as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution or in any such 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.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order for authentication and delivery
of such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series other than Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in denominations
of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its President or a Vice President, under its
corporate seal reproduced thereon, and attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301
a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may be, in the
form set forth in Exhibit A-1 to this Indenture or such other certificate
as may be specified with respect to any series of Securities pursuant to
Section 301, dated no earlier than 15 days prior to the earlier of the date
on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture.
Except as permitted by Section 306, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest
then matured have been detached and canceled.
If all of the Securities of any series are not to be issued at one
time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate or formula, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and-accepting
the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject
to TIA Section 315(a) through 315(d)) shall be fully protected in relying
upon:
(i) an Opinion of Counsel complying with Section 102 and stating
that:
(a) the form or forms of such Securities and any coupons have
been, or will have been upon compliance with such procedures as
may be specified therein, established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any coupons have been, or
will have been upon compliance with such procedures as may be
specified therein, established in conformity with the provisions
of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed pursuant to such procedures as may be
specified therein, and executed and delivered by the Company to
the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to general
equitable principles and to such other matters as may be
specified therein; and
(ii) an Officers' Certificate complying with Section 102 and stating
that all conditions precedent provided for in this Indenture relating to
the issuance of such Securities have been, or will have been upon
compliance with such procedures as may be specified therein, complied with
and that, to the best of the knowledge of the signers of such certificate,
no Event of Default with respect to such Securities shall have occurred and
be continuing.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties, obligations or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver a Company Order, an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the
preceding paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificate, with appropriate
modifications to cover such future issuances, shall be delivered at or
before the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security or the Security to which such coupon
appertains a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case
of Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in
or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to
be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security
shall, unless otherwise provided therein, be delivered to the London office
of a depository or common depository (the "Common Depository"), for the
benefit of Euroclear and CEDEL.
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in an aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date, such temporary global Security
shall be surrendered by the Common Depository to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of
definitive Securities of or within the same series of authorized
denominations and of like tenor as the portion of such temporary global
Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated
by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, however, that, unless
otherwise specified in such temporary global Security, upon such
presentation by the Common Depository, such temporary global Security, if
any, is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security, if any, held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
CEDEL as to the portion of such temporary global Security held for its
account then to be exchanged, each in the form set forth in Exhibit A-2 to
this Indenture or in such other form as may be established pursuant to
Section 301; and provided further that definitive Bearer Securities shall
be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture
(or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from. the offices of Euroclear or CEDEL, the
Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable
on a temporary global Security on an Interest Payment Date for Securities
of such series occurring prior to the applicable Exchange Date shall be
payable to Euroclear or CEDEL on such Interest Payment Date upon delivery
by Euroclear or CEDEL to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms
as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary global Security
on such Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth as Exhibit A-1 to this Indenture (or in such other forms
as may be established pursuant to Section 301). Notwithstanding anything to
the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been
exchanged for an interest in a definitive Security. Any interest so
received by Euroclear or CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment
a register for each series of Securities (the registers maintained in such
office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times and to require that a copy of
the Security Register in written form be delivered to it from time to time
as reasonably requested..
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any
office or agency of the Company 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
and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities
to be exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Registered Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company in an amount equal to the
face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of
any series is surrendered at any such office or agency in a permitted
exchange for a Registered Security of the same series and like tenor after
the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or
in part for definitive Securities, a global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected or approved
by the Company or to a nominee of such successor to DTC. If at any time DTC
notifies the Company that it is unwilling or unable to continue as
depository for the applicable global Security or Securities or if at any
time DTC ceases to be a clearing agency registered under the Exchange Act
if so required by applicable law or regulation, the Company shall appoint a
successor depository with respect to such global Security or Securities. If
(x) a successor depository for such global Security or Securities is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such unwillingness, inability or ineligibility,
(y) an Event of Default has occurred and is continuing and the beneficial
owners representing a majority in principal amount of the applicable series
of Securities represented by such global Security or Securities advise DTC
to cease acting as depository for such global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities (provided, however, the
Company may not make such determination during the 40-day restricted period
provided by Regulation S under the Securities Act or during any other
similar period during which the Securities must be held in global form as
may be required by the Securities Act), then the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities of like
series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities.
If any beneficial owner of an interest in a permanent global Security is
otherwise entitled to exchange such in interest for Securities of such
series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided
that any applicable notice provided in the permanent global Security shall
have been given, then without unnecessary delay but in any event not later
than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global
Security. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered for exchange
by DTC or such other depository as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities to be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those selected for
redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305
not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period
beginning at the opening of business 15 days before selection of the
Securities to be redeemed under Section 1103 and ending at the close of
business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(B) if such Securities are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue or to register
the transfer or exchange of any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of actual notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, 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, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal
of (and premium or Make-Whole Amount, if any), any interest on and any
Additional Amounts with respect to, Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, 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 coupons, if any, or the destroyed, lost or stolen coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any
Registered Security that 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 of the Company maintained for such purpose
pursuant to Section 1002; provided, however, that each installment of
interest on any Registered Security may at the Company's option be paid by
(i) mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as
the case may be, with respect to that portion of such permanent global
Security held for its account by Euroclear or CEDEL, as the case may be,
for the purpose of permitting such party to credit the interest received by
it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency)
on the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date 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.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that 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 registered
Holder thereof 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 Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each
place of payment, but such publications shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
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.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium or Make-Whole Amount, if any), and
(subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security
be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depository, as a Holder, with
respect to such global Security or impair, as between such depository and
owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such depository
(or its nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange
or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to
the Trustee for any such purpose shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. If the Company shall so acquire any of
the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Canceled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order
the Company directs their return to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series herein expressly provided for and any
right to receive Additional Amounts, as provided in Section 1011), and the
Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under
arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies, currency
unit or units or composite currency or currencies 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 (and premium or Make-Whole
Amount, if any) and interest, and any Additional Amounts with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable)or the Stated Maturity or Redemption Date, as the
case may be;
(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent
under Section 611 and, if money shall have been deposited with and held by
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive.
In the event there are Securities of two or more series outstanding
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of a particular series as to
which it is Trustee and if the other conditions thereto are met.
SECTION 402. Application of Company Funds.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium or Make-Whole Amount, if any), and any interest
and Additional Amounts for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any
series of Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for
such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of or within that series or of
any coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of 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 continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which
the Company is directly responsible or liable as obligor or guarantor),
having an aggregate principal amount outstanding of at least $10,000,000,
whether such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any of its Subsidiaries
in an aggregate amount (excluding amounts covered by insurance) in excess
of $10,000,000 and such judgments, orders or decrees remain undischarged,
unstayed and unsatisfied in an aggregate amount (excluding amounts covered
by insurance) in excess of $10,000,000 for a period of 30 consecutive days;
or
(7) the Company or any Significant Subsidiary 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;
or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any Significant
Subsidiary and the order or decree remains unstayed and in
effect for 90 days; or
(9) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or state law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities,
such portion of the principal as may be specified in the terms thereof) of,
and the Make-Whole Amount, if any, on, all the Securities of that series to
be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series is payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of
that series and any related coupons;
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne
by or provided for in such Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided
for in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount 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 or
Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium or Make Whole Amount. if any) and interest and
Additional Amounts, with interest upon any overdue principal (and premium
or Make-Whole Amount, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such
Securities of such series 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 of such series, 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 and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue
principal, premium or Make-Whole Amount, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby
authorized by each Holder of Securities of such series and coupons to make
such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee,
their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt en behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities and coupons in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium or Make-Whole Amount, if any) or interest and any Additional
Amounts, upon presentation of the Securities or coupons, or both, as the
case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606,
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole
Amount, if any) and interest and any Additional
Amounts payable, in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and
coupons for principal (and premium or Make-Whole Amount, if
any), interest and Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(1) such Holder has previously given written-notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest and
Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium or Make-Whole
Amount, if any) and (subject to Sections 305 and 307) interest on,
and any Additional Amounts in respect of, such Security or payment of such
coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon 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 the Company, the Trustee and the Holders of Securities and
coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders of Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein (but the Trustee shall have no obligation
as to the determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect of
any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of any undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on or Additional Amounts payable
with respect to any Security on or after the respective Stated Maturities
expressed in such Security (or in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on or any Additional Amounts with respect to any Security
of such series, or in the payment of any sinking fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series;
and provided further that in the case of any default or breach of the
character specified in Section 501(4) 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. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(3) 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 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(4) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(5) the Trustee may consult with counsel and as a condition to the
taking, suffering or omission of any action hereunder may demand an Opinion
of Counsel, and the advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon 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;
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(9) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture. The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent 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 TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on, or investment of, any money received by
it hereunder.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder, including extraordinary services
rendered in connection with or during the continuation of a default
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense, arising
out of or in connection with the acceptance or administration of the trust
or trusts or the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of it's powers or duties
hereunder except to the extent any such loss, liability or expense may be
attributable to its own negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest on particular Securities or any
coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000 or is a subsidiary of
a corporation which shall be a Person that has a combined capital and
surplus of at least $50,000,000 and which unconditionally guarantees the
obligations of the Trustee hereunder. If such Trustee or Person 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 Trustee or Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) 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
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA Section 315(e), any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security 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 Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series in the manner provided for notices to the Holders of Securities
in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on 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, subject nevertheless to its claim, if any,
provided for in Section 606.
(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, pursuant to Article Nine hereof, wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all of 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 or coupons 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 or coupons so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities or
coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name
or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the
Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption or repayment 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 Section 301,
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, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements
of the aforesaid 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. In case 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 or within the series with respect to which such
Authenticating Agent will serve in the manner set forth in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent 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 the series designated therein
referred to in the within-mentioned Indenture.
___________________________, as Trustee
By:____________________________________
as Authenticating Agent
By:____________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities
in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after __________________ of each year commencing with
the first _________ after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail to all Holders of Securities
as provided in TIA Section 313(c) a brief report dated as of such
________________ if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar,
no such lists shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain
Conditions.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other Person,
provided that in any such case, (i) either the Company shall be the
continuing entity, or the successor (if other than the Company) entity
shall be a Person organized and existing under the laws of the United
States or a State thereof and such successor entity shall expressly assume
the due and punctual payment of the principal of (and premium or Make-Whole
Amount, if any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1011) on all of the Securities, according to
their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture, complying with Article Nine hereof,
satisfactory to the Trustee, executed and delivered to the Trustee by such
Person and (ii) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result thereof as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor entity, such successor entity
shall succeed to and be substituted for the Company, with the same effect
as if it had been named herein as the party of the first part, and the
predecessor entity, except in the event of a lease, shall be relieved of
any further obligation under this Indenture and the Securities. Such
successor entity thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All
the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; 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 for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium, Make-Whole Amount or Interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to add, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination shall (i) neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision;
or (ii) become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into Capital
Stock; 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; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture or to make any other changes, provided
that in each case, such provisions shall not adversely affect the interests
of the Holders of Securities of any series or any related coupons in any
material respect; or
(10) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; 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 Sections 401, 1402 and
1403; provided in each case that any such action shall not adversely affect
the interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities and any
related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium or Make-Whole Amount payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 1011 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security or Make-Whole Amount,
if any, that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502 or the amount thereof provable
in bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, the principal of any Security or
any premium or Make-Whole Amount or any Additional Amounts payable in
respect thereof or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be); or
(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 with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included for the
benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. 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 and that all
conditions precedent to the execution of such supplemental indenture have
been complied with. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities, of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth
in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts.
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 (and premium or Make-Whole Amount, if any) and interest on and
any Additional Amounts payable in respect of the Securities of that series
in accordance with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1011 in respect of principal of (or premium
or Make-Whole Amount, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be
paid by check to the registered Holder of the Registered Security or other
person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company shall 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 or conversion, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company will maintain:
(A) in the Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of
that series may be surrendered for exchange, where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment or conversion
in the circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of
any Additional Amounts payable on Securities of that series pursuant to
Section 1011) or conversion; provided, however, that if the Securities of
that series are listed on the Luxembourg Stock Exchange, The International
Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain
a Paying Agent for the Securities of that series in Luxembourg, London or
any other required city located outside the United States, as the case may
be, so long as the Securities of that series are listed on such exchange;
and (c) subject to any laws or regulations applicable thereto, in each
Place of Payment for that series located outside the United States an
office or agency where any Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of each such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts
payable on Bearer Securities of that series pursuant to Section 1011) at
the offices specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Company hereby
appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium, Make-Whole Amount or
interest on or Additional Amounts in respect of Bearer Securities shall be
made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in Dollars,
payment of principal of and any premium and interest on any Bearer Security
(including any Additional Amounts or Make-Whole Amount payable on
Securities of such series pursuant to Section 1011) shall be made at the
office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest, Additional Amounts or Make-Whole Amount, as
the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series and related coupons,
if any, may be presented or surrendered for any or all of such purposes,
and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in accordance
with the requirements set forth above for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any
such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series
of Securities, or as so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will,
on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on or Additional Amounts in respect of, any of
the Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to
pay the principal (and premium or Make-Whole Amount, if any) or interest or
Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium or Make Whole Amount, if any), or
interest on or Additional Amounts in respect of, any Securities of that
series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium, Make-Whole Amount or interest or Additional
Amounts and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee 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 principal of (and
premium or Make-Whole Amount, if any) or interest on Securities or
Additional Amounts 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) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest or
Additional Amounts; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in respect
of, any Security of any series and remaining unclaimed for two years after
such principal (and premium or Make-Whole Amount, if any), interest or
Additional Amounts has become due and payable shall be paid to the Company
upon Company Request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment of such
principal of (and premium or Make-Whole Amount, if any) or interest on, or
any Additional Amounts in respect of, any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. {Omitted.}
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of the Company and
its Subsidiaries; provided, however, that the Company shall not be required
to preserve any right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole and
that the loss thereof is not disadvantageous in any material respect to the
Holders of Securities of any series.
SECTION 1006. Maintenance of Properties.
The Company will cause all of its properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the
Company or any Subsidiary from selling or otherwise disposing of for value
its properties in the ordinary course of its business.
SECTION 1007. Insurance.
The Company will, and will cause each of its Subsidiaries to, keep all
of its insurable Properties insured against loss or damage at least equal
to their then full insurable value with financially sound and reputable
insurance companies.
SECTION 1008. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon
the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
SECTION 1009. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial
Statements") if the Company were so subject, such documents to be filed
with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file
such documents if the Company were so subject.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Company would
have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Company were subject to such Sections, and
(ii) file with the Trustee copies of annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections and (y) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any
prospective Holder.
SECTION 1010. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to
his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For
purposes of this Section 1010, such compliance shall be determined without
regard to any period of grace or requirement of notice under this
Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series
or any coupon appertaining thereto Additional Amounts as may be specified
as contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context except in the case of Section 502(1), the payment
of the principal of or any premium, Make-Whole Amount or interest on, or in
respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal
and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or Make-Whole Amount or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee
and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are not
United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of or
within the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that
series or related coupons and the Company will pay to the Trustee or such
Paying Agent the Additional Amounts, if any, required by the terms of such
Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of
principal or interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising otherwise and
(ii) to make all payments of principal and interest with respect to the
Securities of a series or related coupons without withholding or deductions
until otherwise advised. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to
this Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1009, inclusive,
and with any other term, provision or condition with respect to the
Securities of any series specified in accordance with Section 301 (except
any such term, provision or condition which could not be amended without
the consent of all Holders of Securities of such series pursuant to Section
902), if before or after the time for such compliance the Holders of at
least a majority in principal amount of all outstanding Securities of such
series, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Securities of any
series, the Company shall, at least 45 days prior to the giving of the
notice of redemption in Section 1104 (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series issued
on such date with the same terms not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified by the terms of such series
established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security
or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, 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;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date;
(6) 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
of the Redemption Price and accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the case;
(8) 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 date fixed for
redemption 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 for such series and any Paying
Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
the redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made;
(10) the CUSIP number of such Security, if any, provided that neither
the Company nor the Trustee shall have any responsibility for any such
CUSIP number; and
(11) if applicable, that a Holder of Securities who desires to convert
Securities to be redeemed must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate
and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company request, by the Trustee in the name and at
the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, which it may not do in the case of a sinking fund payment
under Article Twelve, segregate and hold in trust as provided in Section
1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay on the Redemption Date
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons,
if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section
301, only upon presentation and surrender of coupons for such interest; and
provided further that except as otherwise provided with respect to
Securities convertible into Capital Stock, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section
301, only upon presentation and surrender of those coupons. If any
Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal (and premium or Make-Whole Amount, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne
by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge a new Security or Securities of the
same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of any Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of
such series with all unmatured coupons appertaining thereto and (2) apply
as a credit Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, as provided for by the terms of
such Securities, or which have otherwise been acquired by the Company;
provided that such Securities so delivered or applied as a credit have not
been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking payment date for
Securities of any series, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash in
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section
1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the
next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified
in Section 1103 and cause notice of the redemption thereof to be given in
the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of
such Securities, if any, and (except as otherwise specified by the terms of
such series established pursuant to Section 301) in accordance with this
Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal
amount thereon, together with interest, if any, thereof accrued to the
Repayment Date specified in or pursuant to the terms of such Securities.
The Company covenants that on or before the Repayment Date it will deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay the principal (or, if
so provided by the terms of the Securities of any series, a percentage of
the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof,
as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. In order for any Security to be repaid at the
option of the Holder, the Trustee must receive at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to
the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof
duly completed by the Holder (or by the Holder's attorney duly authorized
in writing) or (2) a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or
trust company in the United States setting forth the name of the Holder of
the Security, the principal amount of the Security, the principal amount of
the Security to be repaid, the CUSIP number, if any, or a description of
the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security to
be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee
not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, however, that such
telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by
such fifth Business Day. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the
minimum denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is
not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be
repaid in part if, following such repayment, the unpaid principal amount of
such Security would be less than the minimum authorized denomination of
Securities of or within the series of which such Security to be repaid is a
part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of
the repayment option by the Holder shall be irrevocable unless waived by
the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article
and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment
Date therein specified, and on and after such Repayment Date (unless the
Company shall default in the payment of such Securities on such Repayment
Date) such Securities shall, if the same were interest bearing, cease to
bear interest and the coupons for such interest appertaining to any Bearer
Securities so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in accordance with
such provisions, together with all coupons, if any, appertaining thereto
maturing after the Repayment Date, the principal amount of such security so
to be repaid shall be paid by the Company, together with accrued interest,
if any, to the Repayment Date; provided, however, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to
Section 301, only upon presentation and surrender of such coupons; and
provided further that, in the case of Registered Securities, installments
of interest, if any, whose Stated Maturity is on or prior to the Repayment
Date shall be payable (but without interest thereon, unless the Company
shall default in the payment thereof) to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor
as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the
preceding sentence, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those coupons. If the principal amount of any Security
surrendered for repayment shall not be so repaid upon surrender thereof,
such principal amount (together with interest, if any, thereon accrued to
such Repayment Date) shall, until paid, bear interest from the Repayment
Date at the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid .
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or both of
(a) defeasance of the Securities of or within a series under Section 1402
or (b) covenant defeasance of the Securities of or within a series under
Section 1403 to be applicable to the Securities of any series, then the
provisions of such Section or Sections, as the case may be, together with
the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities),
shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution at any time,
with respect to such Securities and any coupons appertaining thereto, elect
to defease such Outstanding Securities and any coupons appertaining thereto
pursuant to Section 1402 (if applicable) or Section 1403 (if applicable)
upon compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect
to such Outstanding Securities and any coupons appertaining thereto on the
date the conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any coupons appertaining
thereto, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture referred
to in clauses (A) and (B) below, and to have satisfied all of 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 execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium or Make-Whole Amount,
if any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002
and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1011, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise
of its option under Section 1403 with respect to such Securities and any
coupons appertaining thereto.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1004 to 1009,
inclusive, and, if specified pursuant to Section 301, its obligations under
any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth
in Section 1404 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 1004 to 1009, inclusive, 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 Outstanding Securities and any coupons appertaining
thereto, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
or 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 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 501(4) or
501(9) 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 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402
or Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Securities and any coupons appertaining thereto, money in an
amount, or (3) a combination thereof in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated Maturity of
such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto;
provided, that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such Government Obligations to said payments
with respect to such Securities. Before such a deposit, the Company may
give to the Trustee, in accordance with Section 1102 hereof, a notice of
its election to redeem all or any portion of such Outstanding Securities at
a future date in accordance with the terms of the Securities of such series
and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying
the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound (and shall not cause the Trustee to have a
conflicting interest pursuant to Section 310(b) of the TIA with respect to
any Security of the Company).
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(7) and 501(8) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee 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 Outstanding 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, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any 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 Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the- defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be) registration
is not required under the Investment Company Act of 1940, as amended, by
the Company, with respect to the trust funds representing such deposit or
by the Trustee for such trust funds or (ii) all necessary registrations
under said Act have been effected.
(g) After the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Section 1404 in respect of any
Outstanding 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
(and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds
except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 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 1404(a) has been made in
respect of such Security, or (b) a Conversion Event occurs in respect of
the currency or currency unit in which the deposit pursuant to Section
1404(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 (and
premium or Make-Whole Amount, 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 as 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, except, with respect to a
Conversion Event, for such currency or currency unit in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received
in respect thereof other- than any such tax, fee or other charge which by
law is for the account of the Holders of such Outstanding Securities and
any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request
any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of
a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or in London as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may
be, may determine the time and the place in the Borough of Manhattan, The
City of New York, or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (a) of
this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
(5) days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of or
within the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Company and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Holders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Article Six)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right
of payment, to the extent and in the manner provided in this Article, to
the prior payment in full of all Senior Debt and that the subordination is
for the benefit of the holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash of the principal of and interest (including interest accruing
after the commencement of any such proceeding) to the date of payment on
the Senior Debt before Holders shall be entitled to receive any payment of
principal of or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any distribution
to which Holders would be entitled but for this Article shall be made to
holders of Senior Debt as their interests may appear, except that Holders
may receive securities that are subordinated to Senior Debt to at least the
same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or decree of a
court of competent jurisdiction or a certificate of a bankruptcy trustee or
other similar official for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of Senior Debt and other
Company debt, the amount thereof or payable thereon and all other pertinent
facts relating to the Trustee's obligations under this Article Sixteen.
SECTION 1603. Default on Senior Debt.
The Company may not pay principal of or interest on the Securities and
may not acquire any Securities for cash or property other than capital
stock of the Company if:
(1) a default on Senior Debt occurs and is continuing that permits
holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of the default from a person who may give it pursuant to
Section 1611. If the Company receives any such notice, a similar notice
received within nine months thereafter relating to the same default on the
same issue of Senior Debt shall not be effective for purposes of this
Section.
The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the default is
not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
SECTION 1604. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Securities when 120 days pass after
the acceleration occurs if this Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this Article
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to them
as their interests may appear.
SECTION 1606. Notice by Company.
The Company shall promptly notify the Trustee and any Paying Agent of
any facts known to the Company that would cause a payment of principal of
or interest on Securities to violate this Article.
SECTION 1607. Subrogation.
After all Senior Debt is paid in full and until the Securities are
paid in full, Holders shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the Holders have been
applied to the payment of Senior Debt. A distribution made under this
Article to holders of Senior Debt which otherwise would have been made to
Holders is not, as between the Company and Holders, a payment by the
Company on Senior Debt.
SECTION 1608. Relative Rights.
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available
remedies upon an Event of Default, subject to the rights of holders of
Senior Debt to receive distributions otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1609. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Securities shall be impaired by any act
or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 1610. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
SECTION 1611. Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a
payment of principal of or interest on the Securities to violate this
Article. Only the Company, a Representative or a holder of an issue of
Senior Debt that has no Representative may give the written notice.
The Trustee has no fiduciary duty to the holders of Senior Debt other
than as created under this Indenture. The Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if
it were not Trustee.
The Company's obligation to pay, and the Company's payment of, the
Trustee's fees pursuant to Section 606 are excluded from the operation of
this Article Sixteen.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers hereunto duly authorized, all
as of the day and year first above written.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:
Name:
Title:
, as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member
Organizations") substantially in the form attached hereto, as of the date
hereof, (U.S.$) principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source-("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise
_____________________________ or its agent that such financial institution
will provide a certificate within a reasonable time stating that it agrees
to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by a financial institution for purposes of resale during
the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and that such financial institutions
described in clause (iii) above (whether or not also described in clause
(i) or (ii)) have certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated:_________________________ , 19___
{To be dated no earlier than the earlier of the
Exchange Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as applicable}
,
as
By:
STOCK WARRANT AGREEMENT
STOCK WARRANT AGREEMENT dated as of ______________________________,
199__, between Merry Land & Investment Company, Inc., a Georgia corporation
(the "Company"), and _______________________, a banking association
organized under the laws of the State of _______________________, as Stock
Warrant Agent (the "Stock Warrant Agent").
WHEREAS, the Company proposes to issue and sell stock warrants ("Stock
Warrants") to purchase shares of the Company's common stock, without par
value ("Common Stock"), each whole Stock Warrant exercisable to purchase
one share of Common Stock (such shares which may be purchased upon the
exercise of Stock Warrants at any time being hereinafter referred to as the
"Shares"); and
WHEREAS, the Company desires the Stock Warrant Agent to act on behalf
of the Company, and the Stock Warrant Agent is willing so to act, in
connection with the issuance and exercise of Stock Warrants and the
registration, transfer, exchange and replacement of Stock Warrant
Certificates and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF STOCK WARRANT AGENT. The Company hereby
appoints the Stock Warrant Agent to act as agent for the Company in
accordance with the instructions set forth hereinafter in this Agreement,
and the Stock Warrant Agent hereby accepts such appointment.
SECTION 2. FORM OF STOCK WARRANT CERTIFICATES. The Stock Warrant
Certificates to be delivered pursuant to this Agreement shall be in
registered form only and shall be substantially in the form set forth in
Exhibit A attached hereto, and may have such letters, numbers or other
marks of identification or designation or such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with
any rule or regulation under such law.
SECTION 3. EXECUTION OF STOCK WARRANT CERTIFICATES. Stock Warrant
Certificates shall be signed on behalf of the Company by its Chairman of
the Board, President, an Executive Vice President or a Vice President and
shall be attested by its Secretary or an Assistant Secretary under its
corporate seal. Each such signature upon the Stock Warrant Certificates
may be in the form of a facsimile signature of the present or any future
Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary. The Seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Stock Warrant Certificates.
If the Chairman of the Board or any officer of the Company who shall
have signed any of the Stock Warrant Certificates shall cease to be such
Chairman of the Board or officer before the Stock Warrant Certificates so
signed shall have been countersigned by the Stock Warrant Agent and
delivered to or disposed of by the Company, such Stock Warrant Certificates
nevertheless may be countersigned and delivered to or disposed of as though
such person had not ceased to be such Chairman of the Board or officer of
the Company; and any Stock Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Stock Warrant Certificate, was such Chairman of the Board or officer
although at the date of this Stock Warrant Agreement any such person was
not such Chairman of the Board or officer.
In connection with the initial issuance of the Stock Warrant
Certificates, upon receipt of Stock Warrant Certificates executed by the
Company and a written order of the Company executed by its Chairman of the
Board, President, an Executive Vice President, a Vice President, Secretary
or Assistant Secretary, the Stock Warrant Agent will countersign and
deliver Stock Warrant Certificates in accordance with the instructions
contained in such order.
Stock Warrant Certificates shall be dated the date of countersignature
by the Stock Warrant Agent.
SECTION 4. REGISTRATION AND COUNTERSIGNATURE. Stock Warrant
Certificates distributed as provided in Section 11 shall be registered in
the names of the record holders of the Stock Warrant Certificates to whom
they are to be distributed.
Stock Warrant Certificates shall be manually countersigned by the
Stock Warrant Agent and shall not be valid for any purpose unless so
countersigned.
The Company and the Stock Warrant Agent may deem and treat the
registered holder of a Stock Warrant Certificate as the absolute owner
thereof (notwithstanding any notation of ownership or other writing thereon
made by anyone), for the purpose of any exercise thereof and any
distribution to the holder thereof and for all other purposes, and neither
the Company nor the Stock Warrant Agent shall be affected by any notice to
the contrary.
SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES. The Stock
Warrant Agent shall from time to time register the transfer of any
outstanding Stock Warrant Certificates upon the records to be maintained by
it for that purpose, upon surrender thereof duly endorsed, or accompanied
(if so required by it) by a written instrument or instruments of transfer
in form satisfactory to the Stock Warrant Agent, duly executed by the
registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Stock Warrant Certificate shall be issued
to the transferee and the surrendered Stock Warrant Certificate shall be
canceled by the Stock Warrant Agent. The Stock Warrant Agent shall destroy
canceled Stock Warrant Certificates and deliver a certificate of such
destruction to the Company.
One or more Stock Warrant Certificates may be exchanged at the option
of the holder thereof, when surrendered to the Stock Warrant Agent at its
office maintained for the purpose of exchanging, transferring and
exercising the Stock Warrants in the County of _______________, the City of
______________, State of ______________ (the "Stock Warrant Agent Office")
or at the office of any successor Stock Warrant Agent as provided in
Section 18 hereof, for another Stock Warrant Certificate or other Stock
Warrant Certificates of like tenor and representing in the aggregate a like
number of Stock Warrants. Stock Warrant Certificates surrendered for
exchange or transfer shall be canceled by the Stock Warrant Agent. Such
canceled Stock Warrant Certificates shall be destroyed by the Stock Warrant
Agent and a certificate of such destruction shall be delivered to the
Company.
The Stock Warrant Agent is hereby authorized to countersign, in
accordance with the provisions of this Section 5 and of Section 4, and
deliver the new Stock Warrant Certificates required pursuant to the
provisions of this Section and for the purpose of any distribution of Stock
Warrant Certificates contemplated by Section 11.
SECTION 6. DURATION AND EXERCISE OF STOCK WARRANTS. The Stock
Warrants shall expire on (i) the close of business on _______________ or
(ii) such earlier date after _______________ as shall be determined by the
Company and of which 90 days prior notice to the registered holders of
Stock Warrants and the Stock Warrant Agent shall have been given in
accordance with the provisions of Sections 14 and 19 hereof, if the closing
sale price of the Company's Common Stock (New York Stock Exchange composite
transactions) shall be not less than 125 percent of the then current Stock
Warrant exercise price for 20 trading days in a period of 30 consecutive
trading days ending not more than 10 calendar days immediately prior to the
date of such notice (such date of expiration being herein referred to as
the "Expiration Date"). Each Stock Warrant may be exercised on any
business day prior to the close of business on the Expiration Date. After
the close of business on the Expiration Date, the Stock Warrants will
become wholly void and of no value.
No fractional Shares shall be issued upon surrender of Stock Warrant
Certificates but, in lieu of fractional Shares, the registered holder of
Stock Warrant Certificates may elect (a) to be paid an amount in cash equal
to the same fraction of the current market value of a Share of Common Stock
or (b) to have the amount of the cash payment determined in (a) credited
against the Exercise Price payable for Shares to be received upon exercise
of the holder's whole Stock Warrants. For purposes of (a) and (b), the
current market value of Common Stock shall be the closing price of a Share
of Common Stock (determined pursuant to the second sentence of Section
11(d)) on the last trading day immediately prior to the day on which a
Stock Warrant is exercised.
Subject to the provisions of this Agreement, including Section 11, the
holder of each whole Stock Warrant shall have the right to purchase from
the Company (and the Company shall issue and sell to such holder) one fully
paid and nonassessable Share at the initial exercise price (the "Exercise
Price") of $__________ upon the surrender on any business day prior to the
close of business on the Expiration Date to the Stock Warrant Agent at the
Stock Warrant Agent Office of the Stock Warrant Certificate evidencing such
Stock Warrant, with the form of election to exercise on the reverse thereof
duly filled in and signed, and upon payment of the Exercise Price in lawful
money of the United States of America by means of a certified or official
bank check payable to the Company.
The Stock Warrants evidenced by a Stock Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date, at the
election of the registered holder thereof, either as an entirety or from
time to time for part of the number of Stock Warrants specified in the
Stock Warrant Certificates, but in no event shall any fractional Share be
issued with regard to such Stock Warrant Certificates. In the event that
less than all the Stock Warrant Certificates evidenced by a Stock Warrant
Certificate surrendered upon the exercise of Stock Warrants are exercised
at any time prior to the close of business on the Expiration Date, a new
Stock Warrant Certificate or Certificates will be issued for the remaining
number of Stock Warrants. No adjustments shall be made for any cash
dividends on Shares issuable on the exercise of a Stock Warrant.
Subject to Section 7, upon such surrender of a Stock Warrant
Certificate, and payment of the Exercise Price, the Stock Warrant Agent
shall requisition from First Union National Bank of North Carolina,
Charlotte, North Carolina, the transfer agent for the Common Stock (the
"Transfer Agent"), for issuance and delivery to or upon the written order
of the registered holder of such Stock Warrant Certificate and in such name
or names as such registered holder may designate, a certificate for the
Share or Shares issuable upon the exercise of the Stock Warrants evidenced
by such Stock Warrant Certificates. Such certificate shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become the holder of record of such Share or Shares as of
the date of the surrender of such Stock Warrant Certificates and payment of
the Exercise Price. The Stock Warrant Agent is hereby authorized to
countersign and deliver the required new Stock Warrant Certificate or
Certificates pursuant to the provisions of this Section 6 and of Section 5.
All Stock Warrant Certificates surrendered upon exercise of Stock
Warrants shall be canceled by the Stock Warrant Agent. Such canceled Stock
Warrant Certificates shall then be destroyed by the Stock Warrant Agent and
a certificate of such destruction shall be sent to the Company.
SECTION 7. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Shares upon the
exercise of Stock Warrants; PROVIDED, HOWEVER, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Stock Warrant Certificates or any
certificates for Shares in a name other than that of the registered holder
of a Stock Warrant Certificate surrendered upon the exercise of a Stock
Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 8. MUTILATED, LOST, STOLEN OR DESTROYED STOCK WARRANT
CERTIFICATES. If any Stock Warrant Certificate is mutilated, lost, stolen
or destroyed, the Company may in its discretion issue, and the Stock
Warrant Agent shall countersign and deliver, in exchange and substitution
for and upon cancellation of the mutilated Stock Warrant Certificate, or in
lieu of and substitution for the Stock Warrant Certificate lost, stolen or
destroyed, a new Stock Warrant Certificate of like tenor and representing
the same number of Stock Warrants, but only upon receipt of evidence
satisfactory to the Company and the Stock Warrant Agent of such loss, theft
or destruction of such Stock Warrant Certificate and indemnity or bond, if
requested, also satisfactory to them. Applicants for such substitute Stock
Warrant Certificates shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the
Stock Warrant Agent may prescribe.
SECTION 9. RESERVATION OF SHARES. For the purpose of enabling it
to satisfy any obligation to issue Shares upon exercise of Stock Warrants,
the Company will at all times through the close of business on the
Expiration Date, reserve and keep available, free from preemptive rights
and out of its aggregate authorized but unissued Common Stock, the number
of Shares deliverable upon the exercise of all outstanding Stock Warrants
and the Transfer Agent for such Common Stock are hereby irrevocably
authorized and directed at all times to reserve such number of authorized
and unissued shares of Common Stock as shall be required for such purpose.
The Company will deposit a copy of this Agreement with such Transfer Agent.
The Stock Warrant Agent is hereby irrevocably authorized to requisition
from time to time from such Transfer Agent stock certificates issuable upon
exercise of outstanding Stock Warrants, and the Company will supply such
Transfer Agent with duly executed stock certificates for such purpose.
Before taking any action which would cause an adjustment pursuant to
Section 11 reducing the Exercise Price below the then par value (if any) of
the Shares issuable upon exercise of the Stock Warrants, the Company will
take any corporate action which may, in the opinion of its counsel (which
may be counsel employed by the Company), be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares
at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Stock Warrants will, upon issuance in accordance with the terms of this
Agreement, be fully paid and nonassessable and free from all preemptive
rights and taxes, liens, charges and security interests created by the
Company with respect to the issuance and holding thereof.
SECTION 10. OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE
LISTINGS; REGISTRATIONS OF SHARES. The Company from time to time will use
its best efforts (i) to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and to file
such documents under federal and state securities laws, which may be or
become requisite in connection with the issuance, sale, transfer and
delivery of the Stock Warrant Certificates and the exercise of the Stock
Warrants; PROVIDED, HOWEVER, if any such permits, consents, approvals or
documents are not so obtained or effective, the Company will immediately
notify the Stock Warrant Agent; (ii) to have the Stock Warrants listed on
the New York Stock Exchange or on the principal United States securities
exchange or exchanges on which the Common Stock is listed; (iii)
immediately upon the issuance of Shares upon exercise of Stock Warrants, to
have such Shares listed on the New York Stock Exchange or on the principal
United States securities exchange or exchanges on which the Common Stock is
listed; and (iv) immediately upon any adjustment in the number of Shares
purchasable upon exercise of the Stock Warrants to register such Shares
with the Securities and Exchange Commission under the Securities Act of
1933, as amended.
SECTION 11. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES
PURCHASABLE OR NUMBER OF STOCK WARRANTS. The Exercise Price, the number of
Shares purchasable upon the exercise of each Stock Warrant and the number
of Stock Warrants outstanding are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 11.
(a) If the Company shall at any time after the date of this Agreement
(i) declare a dividend or make a distribution on the Common Stock payable
in shares of Common Stock; (ii) subdivide the outstanding Common Stock;
(iii) combine the outstanding Common Stock into a smaller number of shares;
or (iv) issue any shares of its capital stock in a reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification, and/or the number and kind of
shares of capital stock issuable on such date, shall be proportionately
adjusted so that the holders of any Stock Warrant exercised after such time
shall be entitled to receive the aggregate number and kind of shares of
capital stock which, if such Stock Warrant had been exercised immediately
prior to such date, such Stock Warrant holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
distribution, subdivision, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) If the Company shall at any time after the date of this Agreement
issue rights or warrants to all holders of Common Stock entitling them to
subscribe for or purchase Common Stock (or securities convertible into
Common Stock) at a price per share of Common Stock (or having a conversion
price per share of Common Stock, if a security convertible into Common
Stock) that is less than 95 percent of the then current market price per
share of Common Stock (as defined in Section 11(d)) on the record date
fixed for such issuance, the Exercise Price in effect after such record
date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, of which the numerator
shall be the number of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so to be offered (or
the aggregate initial conversion price of the convertible securities so to
be offered) would purchase at such current market price and of which the
denominator shall be the number of shares of Common Stock outstanding on
such record date plus the number of additional shares of Common Stock to be
offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). If such
subscription price may be paid in consideration part or all of which shall
be in a form other than cash, the value of such consideration shall be
determined by the Board of Directors of the Company, whose determination
shall be conclusive. Shares of Common Stock owned by or held for the
account of the Company or any majority-owned subsidiary shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall
be made successively whenever such a record date is fixed; and if such
rights or warrants are not so issued, the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in effect if such
record date had not been fixed, but such subsequent adjustments shall not
affect the number of Shares issued upon any exercise of Stock Warrants
prior to the date such subsequent adjustment is made.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock of any shares of capital stock
of the Company (other than distributions described in (a) or (b) above) or
evidences of indebtedness or assets (excluding cash dividends and
distributions after December 31, 1994 not in excess of the Company's
cumulative undistributed net earnings at December 31, 1994, plus the
cumulative amount of funds from operations, as determined by the Board of
Directors on a basis consistent with the financial reporting practices of
the Company, after December 31, 1994, minus the cumulative amount of
dividends accrued or paid on any series of Preferred Stock after the date
of this Agreement), the Exercise Price in effect after such record date
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, of which the numerator shall be
the current market price per share of Common Stock (as defined in Section
11(d)) on such record date less the fair market value (determined by the
Board of Directors of the Company, whose determination shall be conclusive,
and described in a statement filed with the Stock Warrant Agent) of the
capital stock or the portion of the assets or evidences of indebtedness so
to be distributed allocable to one share of Common Stock and of which the
denominator shall be such current market price per share of Common Stock.
Such adjustment shall be made successively whenever such a record date is
fixed; and if such distribution is not so made, the Exercise Price shall
again be adjusted to be the Exercise Price which would then be in effect if
such record date had not been fixed, but such subsequent adjustment shall
not affect the number of Shares issued upon any exercise of Stock Warrants
prior to the date such subsequent adjustment is made.
(d) For the purpose of any computation under Section 11(b), (c) or as
elsewhere referenced in this Agreement, the current market price per share
of Common Stock or Stock Warrants on any date shall be deemed to be the
average of the daily closing prices, respectively, for the Common Stock and
the Stock Warrants, for the 30 consecutive trading days commencing 45
trading days before such date. The closing price for each day shall be as
reported as New York Stock Exchange composite transactions.
(e) No adjustments in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least 1 percent
in such price; provided, however, that (x) any adjustments which by reason
of this Section 11(e) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment and (y) notwithstanding
the provisions of this subsection, any adjustments in the Exercise Price
will be made not later than the third anniversary of the occurrence of the
event upon which such adjustment is based; provided, further, that
notwithstanding any other provision in this Section 11, the Company shall
be entitled, to the extent permitted by law, to make such adjustments in
the Exercise Price, in addition to those required by this Section 11, as
the Company in its discretion shall deem advisable in order that any stock
dividends, subdivision of shares, reclassification or combination of
shares, distribution of rights or warrants to purchase stock or securities,
or a distribution of other assets (other than cash dividends) hereafter
made by the Company to its stockholders shall not be taxable, or if that is
not possible, to diminish any income taxes that are otherwise payable
because of such event. All calculations under this Section 11 shall be
made to the nearest cent or to the nearest one-hundredth of a Share, as the
case may be, but in no event shall the Company be obligated to issue a
fractional Share upon the exercise of any Stock Warrant. Notwithstanding
any other provision of this Section 11, the Exercise Price shall not be
adjusted for the issuance of any shares of Common Stock pursuant to any
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional amounts
in shares of Common Stock under any such plan.
(f) In the event that at any time, as a result of an adjustment made
pursuant to Section 11(a), the holder of any Stock Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of
the Company other than shares of Common Stock, thereafter the number of
such other shares so receivable upon exercise of any Stock Warrant shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Shares
contained in Section 11(a) through (c), inclusive, and the provisions of
Section 6, 7, 9, 10, 11(e), 11(j) and 13 with respect to the Shares shall
apply on like terms to any such other shares.
(g) In any case in which this Section 11 shall require that an
adjustment in the Exercise Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Stock Warrant exercised after
such record date of the Shares and other capital stock of the Company, if
any, issuable upon such exercise over and above the Shares and other
capital stock of the Company, if any, issuable upon such exercise on the
basis of the Exercise Price in effect prior to such adjustment; PROVIDED,
HOWEVER, that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such
adjustment.
(h) Unless the Company has exercised its election to adjust the
number of Stock Warrants as provided in Section 11(i), upon each adjustment
of the Exercise Price as a result of the calculations made in Section
11(a), (b) or (c), each Stock Warrant outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase,
at the adjusted Exercise Price, that number of Shares (calculated to the
nearest hundredth) obtained by (A) multiplying the number of Shares
purchasable upon exercise of a Stock Warrant immediately prior to such
adjustment of the number of Shares by the Exercise Price in effect
immediately prior to such adjustment of the Exercise Price and (B) dividing
the product so obtained by the Exercise price in effect immediately after
such adjustment of the Exercise Price.
(i) The Company may elect on or after the date of any adjustment of
the Exercise Price to adjust the number of Stock Warrants, in substitution
for an adjustment in the number of Shares purchasable upon the exercise of
a Stock Warrant as provided in Section 11(h). Each Stock Warrant
outstanding after such adjustment of the number of Stock Warrants shall be
exercisable for the same number of Shares as immediately prior to such
adjustment. Each Stock Warrant held of record prior to such adjustment of
the number of Stock Warrants shall become that number of Stock Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise
Price in effect prior to adjustment of the Exercise Price by the Exercise
Price in effect after adjustment of the Exercise Price. The Company shall
notify the holder of Stock Warrants in the same manner as provided in the
first paragraph of Section 14, of its election to adjust the number of
Stock Warrants, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Exercise Price is adjusted or any day
thereafter, but shall be at least 10 days later than the date of the
notice. Upon each adjustment of the number of Stock Warrants pursuant to
this subsection (i) the Company shall, as promptly as practicable, cause to
be distributed to holders of record of Stock Warrants on such record date
Stock Warrant Certificates evidencing, subject to Section 13, the
additional Stock Warrants to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement
for the Stock Warrant Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Stock Warrant Certificates evidencing all the Stock Warrants to be issued,
executed and registered in the manner specified in Section 4 and 5 (and
which may bear, at the option of the Company, the adjusted Exercise Price)
and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the public announcement.
(j) In the case of any capital reorganization of the Company, or of
any reclassification of the Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as
a result of subdivision or combination), or in case of the consolidation of
the Company with or the merger of the Company into any other corporation or
in case of a statutory share exchange to which the Company is a party
(other than a consolidation, merger or share exchange in which the Company
is the continuing or successor corporation) or of the sale of the
properties and assets of the Company as, or substantially as, an entirety
to any other corporation, each Stock Warrant shall after such
reorganization, reclassification, consolidation, merger, share exchange or
sale be exercisable upon the terms and conditions specified in this
Agreement, for the number of shares of stock or other securities or
property to which a holder of the number of Shares purchasable (at the time
of such reorganization, reclassification, consolidation, merger, share
exchange or sale) upon exercise of such Stock Warrant would have been
entitled upon such reorganization, reclassification, consolidation, merger,
share exchange or sale; and in any such case, if necessary, the provisions
set forth in this Section 11 with respect to the rights and interests
thereafter of the holders of the Stock Warrants shall be appropriately
adjusted so as to be applicable, as early as may reasonably be, to any
shares of stock or other securities or Warrants. The subdivision or
combination of shares of Common Stock at any time outstanding into a
greater or lesser number of shares shall not be deemed to be a
reclassification of the Common Stock for the purposes of this Section
11(j). The Company shall not effect any such consolidation, merger, share
exchange or sale, unless prior to or simultaneously with the consummation
thereof the successor corporation (if other than the Company) resulting
from such consolidation, merger or share exchange or the corporation
purchasing such assets or other appropriate corporation or entity shall
assume, by written instrument executed and delivered to the Stock Warrant
Agent, the obligation to deliver to the holder of each Stock Warrant such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holders may be entitled to purchase under this Agreement.
SECTION 12. OPTIONAL REDUCTION OF EXERCISE PRICE. The Company may,
at any time or from time to time, voluntarily reduce the then current
Exercise Price by an amount not in excess of 33 percent of such then
current Exercise Price for such period or periods of time as the Board of
Directors of the Company may determine; PROVIDED, HOWEVER, that each such
period shall be at least 30 days. In each such event, the Company shall
prepare a certificate of an officer of the Company stating (i) the election
of the Company to reduce the then current Exercise Price in accordance with
this Section 12; (ii) the period in which such reduced Exercise Price shall
be in effect; and (iii) that such election is irrevocable during such
period. The Company shall mail a brief summary of the provisions of such
certificate at least 15 days prior to the date fixed for the commencement
of any period in which the reduced Exercise Price shall be in effect to the
Stock Warrant Agent at the address provided in Section 19 hereof and to
each registered holder of Stock Warrant Certificates at such Stock Warrant
holder's address appearing on the Stock Warrant register. Failure on the
part of the holders of Stock Warrant Certificates to receive such notice by
mail, or any defect therein, shall not affect the validity of the reduction
of the then current Exercise Price during such period. During such period,
any adjustment in the Exercise Price pursuant to Section 11 hereof shall be
made to the reduced Exercise Price as provided by this Section 12 in the
manner specified in such Section 11. After the termination of such period,
the Exercise Price shall be such Exercise Price which would have been in
effect, as adjusted pursuant to the provisions of Section 11, had there
been no reduction in the Exercise Price pursuant to the provisions of this
Section 12. No reduction of the then current Exercise Price pursuant to
the provisions of this Section 12 shall be deemed for the purposes of
Section 11 hereof to alter or adjust the Exercise Price.
SECTION 13. FRACTIONAL STOCK WARRANTS AND FRACTIONAL SHARES. (a)
The Company shall not be required to issue fractions of Stock Warrants on
any distribution of Stock Warrants to holders of Stock Warrant Certificates
pursuant to Section 11(i) or to distribute Stock Warrant Certificates which
evidence fractional Stock Warrants. In lieu of such fractional Stock
Warrants, the registered holder of a Stock Warrant Certificate with regard
to which such a fractional Stock Warrant would otherwise be issuable shall
receive an amount in cash equal to the same fraction of the current market
value of a whole Stock Warrant. For purposes of this Section 13(a), the
current market value of a Stock Warrant shall be determined under Section
11(d) for the last trading day immediately prior to the date on which such
fractional Stock Warrant would have been otherwise issuable.
(b) Notwithstanding an adjustment pursuant to Section 11(h) in the
number of Shares purchasable upon the exercise of a Stock Warrant, the
Company shall not be required to issue fractions of Shares upon exercise of
the Stock Warrants or to distribute certificates which evidence fractional
Shares. The registered holders of Stock Warrant Certificates at the time
such Stock Warrants are exercised as herein provided may elect (i) to
receive an amount in cash equal to the same fraction of the current market
value of a share of Common Stock or (ii) to have the cash payment credited
against the Exercise Price of Shares to be received upon exercise of whole
Stock Warrants. Such election shall be made on the form provided for such
purpose by the Company. For purposes of this Section 13(b), the current
market value of a share of Common Stock shall be as determined under
Section 11(d) for the last trading day immediately prior to the date of
such exercise.
SECTION 14. NOTICES TO STOCK WARRANT HOLDERS. Upon adjustment of
the Exercise Price pursuant to Section 11, the Company within 20 calendar
days thereafter shall (i) cause to be filed with the Stock Warrant Agent a
certificate of a firm of independent public accountants of recognized
standing selected by the Company (who may be the regular auditors of the
Company) setting forth the Exercise Price after such adjustment and setting
forth in reasonable detail the method of calculation and the facts upon
which such calculations are based and setting forth the number of Shares
purchasable upon exercise of a Stock Warrant after such adjustment in the
Exercise Price, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein and (ii) cause to be given to
each of the registered holders of the Stock Warrant Certificates at such
Stock Warrant holder's address appearing on the Stock Warrant register
written notice of such adjustments by first-class mail, postage prepaid.
Where appropriate, such notice may be given in advance and included as a
part of the notice required to be mailed under the other provisions of this
Section 14.
If:
(a) the Company authorizes the issuance to all holders of
Common Stock or rights or warrants to subscribe for or purchase
capital stock of the Company or of any other subscription rights
or warrants; or
(b) the Company authorizes the distribution to all holders
of Common Stock of evidences of its indebtedness or assets
(excluding (i) cash dividends or distributions paid from
consolidated earnings or consolidated earned surplus of the
Company (determined in accordance with generally accepted
accounting principles), or (ii) quarterly Common Stock dividends
at the rate of $____ per share or increases therein out of
consolidated net income of the Company (determined in accordance
with generally accepted accounting principles) for the period
from the end of its most recent fiscal year to the date of the
most recent consolidated quarterly financial statements of the
Company as of the time of the declaration of the dividend, and
(iii) dividends payable in Common Stock); or
(c) there is any consolidation, share exchange or merger to
which the Company is a party and for which approval of any
stockholders of the Company is required, or of the conveyance or
transfer of the properties and assets of the Company
substantially as an entirety, or of any capital reorganization or
any reclassification of the Common Stock (other than a change in
par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or
combination); or
(d) there is a voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company proposes to take any other action which
would require an adjustment of the Exercise Price pursuant to
Section 11;
the Company shall file with the Stock Warrant Agent and give to each
registered holder of a Stock Warrant Certificate at such Stock Warrant
holder's address appearing on the Stock Warrant register, at least 20
calendar days (or 10 calendar days in any case specified in clauses (a) or
(b) above) prior to the applicable record date hereinafter specified in (i)
or (ii) below, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such rights, warrants or distribution
are to be determined or (ii) the date on which any such consolidation,
merger, share exchange, conveyance, transfer, reorganization,
reclassification, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
record of shares of Common Stock shall be entitled to exchange such shares
for securities or other property, if any, deliverable upon such
consolidation, share exchange, merger, conveyance, transfer,
reorganization, reclassification, dissolution, liquidation or winding up.
Failure to give the notice required by this Section 14 or any defect
therein shall not affect the legality or validity of any distribution,
right, warrant, consolidation, share exchange, merger, conveyance,
transfer, reorganization, reclassification, dissolution, liquidation or
winding up or the vote upon any action.
Nothing in this Agreement or in any Stock Warrant Certificate shall be
construed as conferring upon the holder thereof the right to vote or to
consent or to receive notice as a stockholder in respect of the meetings of
stockholders or the election of directors of the Company or on any other
matter, or any rights whatsoever as a stockholder of the Company.
SECTION 15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF STOCK
WARRANT AGENT. Any corporation into which the Stock Warrant 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
the Stock Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Stock Warrant Agent, shall be the
successor to the Stock Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for appointment as
a successor Stock Warrant Agent under the provisions of Section 18. If at
the time such successor to the Stock Warrant Agent shall succeed under this
Agreement, any of the Stock Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Stock Warrant
Agent may adopt the countersignature of the original Stock Warrant Agent;
and in case at that time any of the Stock Warrant Certificates shall not
have been countersigned, any successor to the Stock Warrant Agent may
countersign such Stock Warrant Certificates either in the name of the
predecessor Stock Warrant Agent or in the name of the successor Stock
Warrant Agent. In all such cases such Stock Warrant Certificates shall
have the full force provided in the Stock Warrant Certificates and in this
Agreement.
If at any time the name of the Stock Warrant Agent shall be changed
and at such time any of the Stock Warrant Certificates shall have been
countersigned but not delivered, the Stock Warrant Agent whose name has
changed may adopt the countersignature under its prior name, and if at that
time any of the Stock Warrant Certificates shall not have been
countersigned, the Stock Warrant Agent may countersign such Stock Warrant
Certificates either in its prior name or in its changed name, and in all
such cases such Stock Warrant Certificates shall have the full force
provided in the Stock Warrant Certificates and in this Agreement.
SECTION 16. STOCK WARRANT AGENT. The Stock Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders
of Stock Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Stock Warrant
Certificates shall be taken as statements of the Company, and the Stock
Warrant Agent assumes no responsibility for the correctness of any of the
same except such statements as describe the Stock Warrant Agent or action
taken or to be taken by it. Except as herein otherwise provided, the Stock
Warrant Agent assumes no responsibility with respect to the execution,
delivery or distribution of the Stock Warrant Certificates.
(b) The Stock Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Stock Warrant Certificates to be complied with by the
Company, nor shall the Stock Warrant Agent at any time be under any duty or
responsibility to any holder of a Stock Warrant to make or cause to be made
any adjustment in the Exercise Price (except that the Stock Warrant Agent
shall receive the certificate of the Company's independent accountants
required to be delivered in connection with any adjustment of the Exercise
Price) or in the number of Shares issuable upon exercise of the Stock
Warrants (except as instructed by the Company), or to determine whether any
facts exist which may require any such adjustments, or with respect to the
nature or extent of or method employed in making any such adjustments when
made.
(c) The Stock Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Stock
Warrant Agent shall incur no liability or responsibility to the Company or
to any holder of any Stock Warrant Certificate in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance
with the opinion or the advice of such counsel.
(d) The Stock Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Stock Warrant
Certificate for any action taken in reliance on any notice, resolution,
waiver, consent, order, certificate, or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or presented by
the proper party or parties.
(e) The Company agrees (i) to pay to the Stock Warrant Agent
reasonable compensation for all services rendered by the Stock Warrant
Agent under this Agreement; (ii) to reimburse the Stock Warrant Agent upon
demand for all expenses, taxes and governmental charges and other charges
of any kind and nature incurred by the Stock Waiver Agent in the execution
of its duties under this Agreement; and (iii) to indemnify the Stock
Warrant Agent and hold it harmless against any and all losses, liabilities
and expenses, including judgments, costs and counsel fees, for anything
done or omitted by the Stock Warrant Agent arising out of or in connection
with this Agreement, except as a result of its negligence or bad faith.
(f) The Stock Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of
Stock Warrant Certificates shall furnish the Stock Warrant Agent with
reasonable security and indemnity for any costs and expenses which may be
incurred. All rights of action under this Agreement or under any of the
Stock Warrants may be enforced by the Stock Warrant Agent without the
possession of any of the Stock Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such
action, suit or proceeding instituted by the Stock Warrant Agent shall be
brought in its name as Stock Warrant Agent, and any recovery or judgment
shall be for the ratable benefit of the registered holders of the Stock
Warrants, as their respective rights or interests may appear.
(g) The Stock Warrant Agent, and any stockholder, director, officer
or employee thereof, may buy, sell or deal in any of the Stock Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as thought
it were not the Stock Warrant Agent under this Agreement. Nothing herein
shall preclude the Stock Warrant Agent from acting in any other capacity
for the Company or for any other legal entity.
(h) The Stock Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the provisions
hereof. The Stock Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement, except for
its own negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Stock Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
(j) The Stock Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Stock Warrant Agent) or in
respect of the validity or execution of any Stock Warrant Certificate
(except its countersignature thereof); nor shall the Stock Warrant Agent by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of the Shares to be issued pursuant to
this Agreement or any Stock Warrant Certificate or as to whether the Shares
will, when issued, be validly issued, fully paid and nonassessable or as to
the Exercise Price or the number of Shares issuable upon exercise of any
Stock Warrant.
(k) The Stock Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, the President, any Executive Vice President
or Vice President, the Secretary or Assistant Secretary of the Company, and
to apply to such officers for advice or instructions in connection with its
duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such
officer or in good faith reliance upon any statement signed by any one of
such officers of the Company with respect to any fact or matter (unless
other evidence in respect thereof is herein specifically prescribed) which
may be deemed to be conclusively proved and established by such signed
statement.
(l) The Company will furnish to the Stock Warrant Agent, upon request
but not more often than annually, an opinion of counsel (who may be counsel
to the Company) acceptable to the Stock Warrant Agent, to the effect that
(i) a Registration Statement under the Securities Act of 1933, as amended,
is then in effect with respect to the Shares issuable on the exercise of
the Stock Warrants and that the Prospectuses hereinafter referred to comply
as to form in all material respects with the requirements of said Act and
the rules and regulations of the Securities and Exchange Commission
thereunder or (ii) a Registration Statement under said Act with respect to
the Shares issuable on the exercise of the Stock Warrants is not required.
If said opinion states that such a Registration Statement is in effect, the
Company will, from time to time, furnish the Stock Warrant Agent with
current Prospectuses meeting the requirements of said Act and all rules and
regulations thereunder in sufficient quantity to permit the Stock Warrant
Agent to deliver a Prospectus to each holder of a Stock Warrant upon
exercise thereof. The Company further agrees to pay all fees, costs and
expenses in connection with the preparation and delivery to the Stock
Warrant Agent of the foregoing opinions and Prospectuses.
SECTION 17. DISPOSITION OF PROCEEDS OF EXERCISE OF STOCK WARRANTS.
The Stock Warrant Agent shall account promptly to the Company with respect
to Stock Warrants exercised and concurrently pay to the Company all moneys
received by the Stock Warrant Agent on the purchase of Shares through the
exercise of Stock Warrants.
SECTION 18. CHANGE OF STOCK WARRANT AGENT. If the Stock Warrant
Agent shall resign (such resignation to become effective not earlier than
30 days after the giving of written notice thereof to the Company and the
registered holders of Stock Warrant Certificates) or shall become incapable
of acting as Stock Warrant Agent, the Company shall appoint a successor to
the Stock Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after it has been so notified in
writing by the Stock Warrant Agent or by the registered holder of a Stock
Warrant Certificate (in the case of incapacity), then the registered holder
of any Stock Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a successor to the Stock Warrant Agent.
Pending appointment of a successor to the Stock Warrant Agent, either by
the Company or buy such a court, the duties of the Stock Warrant Agent
shall be carried out by the Company. Any successor Stock Warrant Agent
whether appointed by the Company or by such a court shall be a bank or
trust company, in good standing, incorporated under the laws of the United
States of America or any state thereof, and having an office in the County
of _______________, The City of ______________, State of ______________,
and shall have at the time of its appointment as Stock Warrant Agent a
combined capital and surplus of at least 50 million dollars. As soon as
practicable after appointment of the successor Stock Warrant Agent, the
Company shall cause to be given to each of the registered holders of the
Stock Warrant Certificates at such Stock Warrant holder's address appearing
on the Stock Warrant register written notice of the change in the Stock
Warrant Agent by first-class mail, postage prepaid. After appointment, the
successor Stock Warrant Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Stock
Warrant Agent without further act or deed; but the former Stock Warrant
Agent shall deliver and transfer to the successor Stock Warrant Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed
necessary for the purpose. Failure to give any notice provided for in this
Section 18, however, or any defect therein, shall not affect the legality
or validity of the removal of the Stock Warrant Agent or the appointment of
a successor Stock Warrant Agent, as the case may be.
SECTION 19. NOTICES TO COMPANY AND STOCK WARRANT AGENT Any notice
or demand authorized by this Agreement to be given or made by the Stock
Warrant Agent or by the registered holder of any Stock Warrant Certificate
to or on the Company shall be sufficiently given or made if sent by mail,
first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Stock Warrant Agent),
as follows:
Merry Land & Investment Company, Inc.
624 Ellis Street
Augusta, Georgia 30901
Attention: Chairman of the Board
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at
the corporate trust office of the Stock Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder of any Stock Warrant Certificate to the Stock Warrant
Agent shall be sufficiently given if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Stock
Warrant Agent with the Company) to the Stock Warrant Agent as follows:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Notwithstanding the foregoing, no notice pursuant to this
Agreement shall be effective until received by the Stock Warrant Agent.
SECTION 20. SUPPLEMENTS AND AMENDMENTS. The Company and the Stock
Warrant Agent may from time to time supplement or amend this Agreement
without the approval of any holders of Stock Warrant Certificates in order
to cure any ambiguity, manifest error or other mistake in this Agreement,
or to correct or supplement any provision contained herein, or to make any
other provisions in regard to matters or questions arising hereunder which
the Company and the Stock Warrant Agent may deem necessary or desirable and
which shall not adversely affect, alter or change the interest of the
holders of Stock Warrant Certificates.
SECTION 21. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Stock Warrant Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
SECTION 22. TERMINATION. This Agreement shall terminate at the
close of business on the Expiration Date. Notwithstanding the foregoing ,
this Agreement will terminate on any earlier date if all Stock Warrants
have been exercised. The provisions of Section 16 shall survive such
termination.
SECTION 23. GOVERNING LAW. This Agreement and each Stock Warrant
Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of [______________] and for all purposes shall be
construed in accordance with the laws of such State.
SECTION 24. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Stock Warrant Agent and the registered holders of the Stock
Warrant Certificates any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Stock Warrant Agent and the registered holders
of the Stock Warrant Certificates.
SECTION 25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:____________________
Title:
[ ]
as Stock Warrant Agent
By:____________________
Title:
<PAGE>
EXHIBIT A
No. W-
[FORM OF STOCK WARRANT CERTIFICATE]
[FACE]
EXERCISABLE ON OR BEFORE ____________________
UNLESS SUCH DATE IS ACCELERATED BY THE COMPANY AS PROVIDED
IN THE STOCK WARRANT AGREEMENT REFERRED TO BELOW
Certificate for _______ Stock Warrants
STOCK WARRANT CERTIFICATE
MERRY LAND & INVESTMENT COMPANY, INC.
This Stock Warrant Certificate certifies that _____________ or
registered assigns, is the registered holder of the number of Stock
Warrants (the "Stock Warrants") of Merry Land & Investment Company, Inc., a
Georgia Corporation (the "Company"), set forth elsewhere on this
certificate. Each Stock Warrant expires at the close of business on
________________, or such earlier date after ________________________ as
shall be determined pursuant to the Stock Warrant Agreement referred to on
the reverse hereof, and entitles the holder to purchase from the Company
one fully paid and nonassessable share of Common Stock without par value,
of the Company (the "Share") at the initial exercise price (the "Exercise
Price") of $_______ payable in lawful money of the United States of America
by means of a certified or official bank check payable to the Company upon
surrender of this Stock Warrant Certificate and payment of the Exercise
Price at the office or agency of the Stock Warrant Agent in the County of
_______________, The City of ______________, State of ______________ (the
"Stock Warrant Agent Office"), but only subject to the conditions set forth
herein and in the Stock Warrant Agreement. The Exercise Price and number of
Shares purchasable upon exercise of the Stock Warrants are subject to
adjustment upon the occurrence of certain events set forth in the Stock
Warrant Agreement.
No Stock Warrant may be exercised after the close of business on (i)
________________ or (ii) such earlier date, on or subsequent to
______________, as shall be determined by the Company and of which 90 days
prior notice shall have been given to the registered holder hereof, if the
closing sale price for the Company's Common Stock shall be not less than
125 percent of the then current Stock Warrant exercise price for 20 trading
days in a period of 30 consecutive trading days ending not more than 10
calendar days immediately prior to the date of such notice (such date of
expiration, or such earlier date, is hereafter referred to as the
"Expiration Date"). After the close of business on the Expiration Date,
the Stock Warrants will become wholly void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS STOCK
WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF AND SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH AT THIS PLACE.
This Stock Warrant Certificate shall not be valid unless countersigned
by the Stock Warrant Agent, as such term is used in the Stock Warrant
Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
MERRY LAND & INVESTMENT
COMPANY, INC.
Dated: By:____________________
Title:
Attest:________________
Title:
[SEAL]
Countersigned:
[ ]
as Stock Warrant Agent
By:___________________
Authorized Signature
<PAGE>
[FORM OF STOCK WARRANT CERTIFICATE]
[REVERSE]
MERRY LAND & INVESTMENT COMPANY, INC.
The Stock Warrants evidenced by this Stock Warrant Certificate are
part of a duly authorized issue of Stock Warrants expiring at the close of
business on _______________, unless such date is accelerated at the option
of the Company pursuant to the Stock Warrant Agreement, to purchase shares
of Common Stock, without par value, of the Company in aggregate up to the
number of Stock Warrants evidenced by this Stock Warrant Certificate, and
are issued or to be issued pursuant to a Stock Warrant Agreement dated as
of ________ (the "Stock Warrant Agreement"), duly executed and delivered by
the Company to _____________, as Stock Warrant Agent (the "Stock Warrant
Agent"). The Stock Warrant Agreement is hereby incorporated by reference
and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of right, obligations, duties and
immunities thereunder of the Stock Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Stock Warrants.
Stock Warrants may be exercised to purchase Shares from the Company on
or before the close of business on the Expiration Date, at the Exercise
Price set forth on the face hereof, subject to adjustment, as hereinafter
referred to. The holder of Stock Warrants evidenced by this Stock Warrant
Certificate may exercise them by surrendering the Stock Warrant
Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise
Price at the Stock Warrant Agent Office. If upon any exercise of Stock
Warrants evidenced hereby the number of Stock Warrants exercised shall be
less than the total number of Stock Warrants evidenced hereby, there shall
be issued to the holder hereof or such holder's assignee a new Stock
Warrant Certificate evidencing the number of Stock Warrants not exercised.
No adjustment shall be made for any cash dividends on any Shares issuable
upon exercise of this Stock Warrant. After the close of business on the
Expiration Date, unexercised Stock Warrants shall become wholly void and of
no value.
The Stock Warrant Agreement provides that, upon the occurrence of
certain events, the Exercise Price set forth on the face hereof may,
subject to certain conditions, be adjusted. If the Exercise Price is
adjusted, the Stock Warrant Agreement provides that, at the election of the
Company, either (i) the number of Shares purchasable upon the exercise of
each Stock Warrant shall be adjusted or (ii) each outstanding Stock Warrant
shall be adjusted to become a different number of Stock Warrants. In the
latter event, the Company will cause to be distributed to registered
holders of Stock Warrant Certificates either Stock Warrant Certificates
representing the additional Stock Warrants issuable pursuant to the
adjustment or substitute Stock Warrant Certificates to replace all
outstanding Stock Warrant Certificates.
At any time or from time to time, the Company shall have the right to
reduce the then current Exercise Price by an amount not in excess of 33
percent for a period or periods to be determined by the Company, but in any
event not less than 30 days. The Company shall make a public announcement
of the reduction in Exercise Price and shall mail a notice to each
registered holder of Stock Warrant Certificates.
The Company shall not be required to issue fractional Stock Warrants
or fractional Shares upon the exercise of Stock Warrants or any
certificates which evidence fractional Stock Warrants or fractional Shares.
In lieu of such fractional Stock Warrants, the registered holder of a Stock
Warrant Certificate with regard to which a fractional Stock Warrant would
otherwise be issuable shall receive an amount in cash equal to the same
fraction of the current market value of a whole Stock Warrant (as
determined pursuant to the Stock Warrant Agreement). In lieu of such
fractional Shares the registered holders of the Stock Warrant Certificates
with regard to which such fractional Shares would otherwise be issuable may
elect, at the time of the exercise of Stock Warrants, (i) to receive an
amount in cash equal to the same fraction of the current market value (as
determined pursuant to the Stock Warrant Agreement) of a full Share or (ii)
to credit such cash payment against the Exercise Price of Shares to be
received upon exercise of whole Stock Warrants.
One or more Stock Warrant Certificates, when surrendered at the Stock
Warrant Agent Office by the registered holder thereof in person or by legal
representative or by attorney duly authorized in writing, may be exchanged,
in the manner and subject to the limitations provided in the Stock Warrant
Agreement, but without payment of any service charge, for another Stock
Warrant Certificate or Stock Warrant Certificates of like tenor evidencing
in the aggregate a like number of Stock Warrants.
Upon due presentment for registration of transfer of this Stock
Warrant Certificate at the Stock Warrant Agent Office, a new Stock Warrant
Certificate or Stock Warrant Certificates of like tenor and evidencing in
the aggregate a like number of Stock Warrants shall be issued to the
transferee in exchange for this Stock Warrant Certificate, subject to the
limitations provided in the Stock Warrant Agreement, without charge except
for any tax or other governmental charge imposed in connection therewith.
The Company and the Stock Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Stock Warrant
Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone) for the purpose of any exercise or exchange hereof
and for all other purposes, and neither the Company nor the Stock Warrant
Agent shall be affected by any notice to the contrary.
<PAGE>
[FORM OF ELECTION TO EXERCISE]
(To be executed upon exercise of Stock Warrant prior to the close of
business on the Expiration Date)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Stock Warrant Certificate, to purchase ____ Shares and
herewith tenders payment for such Shares in the amount of $____ in the form
of a certified or official bank check payable to the Company. The
undersigned requests that a certificate representing the Shares be
registered in the name of _______________________ whose address is
___________________________ and that such certificate be delivered to
_________________ whose address is ______________________. If said number
of Shares is less than all the Shares purchasable hereunder, the
undersigned requests that a new Stock Warrant Certificate representing the
right to purchase the balance of the Shares be registered in the name of
__________________ whose address is _____________________. In lieu of
receipt of a fractional Share, if any, the undersigned hereby elects (i) to
receive a cash payment made to _____________ whose address is
_____________________ and the check representing payment thereof should be
delivered to __________________, whose address is __________________ or
(ii) elects to credit the amount of such payment against the Exercise Price
payable for Shares to be received upon the exercise of Stock Warrants.
Dated: ______________, 19__
________________________________
Social Security or other
Taxpayer's Identification Number
<PAGE>
Name of registered holder of Stock Warrant Certificate:
______________________________
(Please print)
Address:
______________________________
______________________________
Signature:
______________________________
Note: The above signature must correspond with the name as written upon
the face of this Stock Warrant Certificate in every particular,
without alteration or enlargement or any change whatever and if
the certificate representing the Shares or any Stock Warrant
Certificate representing Stock Warrants not exercised is to be
registered in a name other than that in which this Stock Warrant
Certificate is registered, the signature of the holder hereof
must be guaranteed.
Signature Guaranteed:
<PAGE>
[FORM OF ASSIGNMENT]
For value received _________________________ hereby sells, assigns and
transfers unto ___________________ the within Stock Warrant Certificate,
together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint _____________ attorney, to transfer said
Stock Warrant Certificate on the books of the within-named Company, with
full power of substitution in the premises.
Dated: _____________________, 19__
----------------------------------------------------------------------
Note: The above signature must correspond with the name as written
upon the face of this Stock Warrant Certificate in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranteed:
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
February 8, 1995
Writer's Direct Dial
706/828-2001
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
Re: SHELF REGISTRATION STATEMENT ON FORM S-3
Ladies & Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc., a
Georgia corporation (the "Company"), in connection with the preparation of
the Registration Statement on Form S-3 (the "Registration Statement") filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the contemplated issuance by the Company from time to time of up to
$400,000,000 aggregate pubic offering price or the equivalent thereof in
one or more foreign currencies or composite currencies of (i) senior or
subordinated debt securities (the "Debt Securities"), which may be issued
pursuant to a Senior Debt Securities Indenture between the Company and
First Union National Bank of Georgia, as Trustee (as amended or
supplemented, the "Senior Indenture"), or a Subordinated Debt Securities
Indenture between the Company and First Union National Bank of Georgia, as
Trustee (as amended or supplemented, the "Subordinated Indenture" and,
together with the Senior Indenture, the "Indentures"); (ii) shares of
preferred stock, without par value per share (the "Preferred Stock"), which
may be issued in the form of depositary shares (the "Depositary Shares")
evidenced by depositary receipts (the "Receipts"); (iii) shares of common
stock of the Company, without par value per share (the "Common Stock"); and
(iv) warrants to purchase Common Stock (the "Warrants").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purpose of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When (i) the Registration Statement and any required post-effective
amendment thereto have become effective under the Securities Act;
(ii) the Indentures have been duly executed and delivered; (iii) the terms
of the Debt Securities and of their issuance and sale have been duly
established in conformity with the Indentures relating to the Debt
Securities so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and
so as to comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company; (iv)
the Debt Securities have been duly executed and authenticated in accordance
with the Indentures relating to the Debt Securities, and duly issued and
sold as contemplated by the Registration Statements and any prospectus
supplement relating thereto; and (v) a sufficient number of shares of
Common Stock has been duly and properly authorized and reserved for
issuance upon exercise of any exchange or conversion rights of holders of
Debt Securities, the Debt Securities will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors rights generally, and (b) general
principles of equity (regardless of whether considered in a proceeding at
law or in equity).
2. When (i) the Registration Statement and any required post-effective
amendment thereto have become effective under the Securities Act;
(ii) the Deposit Agreement relating to the Depositary Shares has been duly
executed and delivered; (iii) the terms of the Depositary Shares and of
their issuance and sale have been duly established in conformity with the
Deposit Agreement relating to such Depositary Shares so as not to violate
any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or
regulatory body having jurisdiction over the Company; (iv) the terms of the
Preferred Stock have been duly and properly authorized for issuance and
Articles of Amendment to the Articles of Incorporation of the Company
classifying the Preferred Stock and setting forth the terms thereof have
been filed; (v) such shares of Preferred Stock have been duly issued and
paid for in the manner contemplated in the Registration Statements and any
prospectus supplement relating thereto; (vi) the Receipts evidencing the
Depositary Shares are duly issued against the deposit of the Preferred
Stock in accordance with the Deposit Agreement, and (vii) a sufficient
number of shares of Common Stock has been duly and properly authorized and
reserved for issuance upon exercise of any conversion rights of holders of
Receipts, such Receipts will be validly issued and will entitle the holders
thereof to the rights specified therein and in the Deposit Agreement.
3. When (i) the Registration Statement and any required post-effective
amendment thereto have become effective under the Securities Act;
(ii) the Warrant Agreement relating to the Warrants (the "Warrant
Agreement") has been duly executed and delivered; (iii) the terms of the
Warrants and of their issuance and sale have been duly established in
conformity with the Warrant Agreement relating to such Warrants so as not
to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any governmental or regulatory body having jurisdiction over the Company;
(iv) the Warrants have been duly executed and countersigned in accordance
with the Warrant Agreement relating to such Warrants, and issued and sold
in the form and in the manner contemplated in the Registration Statement
and any prospectus supplement relating thereto; and (v) a sufficient number
of shares of Common Stock has been duly and properly authorized and
reserved for issuance upon exercise of such Warrants, such Warrants will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws nor
or hereafter in effect relating to or affecting creditors' rights
generally, and (b) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
4. When (i) the Registration Statement and any required post-effective
amendment thereto have become effective under the Securities Act;
(ii) the terms of the Preferred Stock have been duly and properly
authorized for issuance and Articles of Amendment to the Articles of
Incorporation of the Company classifying the Preferred Stock and setting
forth the terms thereof have been filed; (iii) such shares of Preferred
Stock have been duly issued and paid for in the manner contemplated in the
Registration Statement and any prospectus supplement relating thereto; and
(iv) a sufficient number of shares of Common Stock has been duly and
properly authorized and reserved for issuance upon exercise of any
Conversion Rights of holders of Preferred Stock, such shares of Preferred
Stock will be validly issued, fully paid and nonassessable.
5. When (i) the Registration Statement and any required post-effective
amendment thereto have become effective under the Securities Act;
(ii) the shares of Common Stock have been duly and properly authorized for
issuance; and (iii) the shares of Common Stock have been duly issued, sold
and delivered as contemplated in the Registration Statement and any
prospectus supplement relating thereto, the shares of Common Stock
(including any Common Stock duly issued (x) upon the exchange or conversion
of any shares of Preferred Stock that are exchangeable or convertible into
Common Stock, (y) upon the exercise of any Warrants exercisable for Common
Stock or (z) upon the exchange or conversion of any Debt Securities that
are exchangeable or convertible into Common Stock), will be validly issued,
fully paid and nonassessable.
We are members of the Bar of the State of Georgia and the foregoing
opinion is limited to the laws of the State of Georgia and the federal laws
of the United States of America.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the heading
"Legal Opinions." In giving such 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.
Sincerely,
/S/
John W. Gibson
<EXHIBIT 23-B>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation
by reference of our reports dated January 27, 1994, January 28, 1994 and
February 16, 1994 included in the reports of Merry Land & Investment
Company, Inc. on Forms 8-K/A filed March 1, 1994 and March 2, 1994, the
incorporation by reference of our reports dated June 17, 1994 and June 27,
1994 included in the report of the Company on Form 8-K filed June 29, 1994,
the incorporation by reference of our report dated September 16, 1994
included in the Company's Form 8-K/A filed September 27, 1994, the
incorporation by reference of our report dated September 16, 1994 included
in the Company's Form 8-K/A filed February 7, 1995, the incorporation by
reference of our reports dated January 17, 1994 included in the Company's
Form 10-K for the year ended December 31, 1993, and to all references to
our firm included in or made a part of this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 8, 1995
