<PAGE> 1
As filed with the Securities and Exchange Commission on December 11, 1995.
Registration No. 33-_______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KMART CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
MICHIGAN 38-0729500
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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</TABLE>
3100 West Big Beaver Road
Troy, Michigan 48084
(810) 643-1000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
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A. N. Palizzi, Esq.
Executive Vice President and
General Counsel
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
(810) 643-1000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
<TABLE>
<S> <C>
Verne C. Hampton, II, Esq. Peter A. Atkins, Esq.
Dickinson, Wright, Moon, Van Dusen & Freeman Skadden, Arps, Slate, Meagher & Flom
500 Woodward Avenue, Suite 4000 919 Third Avenue
Detroit, Michigan 48226 New York, New York 10022
(313) 223-3500 (212) 735-3000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [x]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class of Securities Amount to be Regis- Proposed Maximum Proposed Amount of
to be Registered tered (1) Aggregate Price Per Maximum Registration
Unit (2) Aggregate Fee
Offering Price (1)(2)
<S> <C> <C> <C> <C>
Debt Securities (3)
Preferred Stock, no par value (3)
Depositary Shares
Common Stock, $1.00 par value (3)(4)
Warrants
Total $1,000,000,000 100% $1,000,000,000 $344,827.59
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies. Such amount
represents the aggregate offering price of the Debt Securities, Preferred
Stock, Depositary Shares, Common Stock, Warrants to Purchase Debt
Securities and Warrants to Purchase Equity Securities and the exercise
price of any Securities issuable upon exercise of Warrants.
(2) Estimated for the sole purpose of computing the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(3) Also includes such indeterminate number of shares of Preferred Stock,
Depositary Shares, and Common Stock as may be issued upon conversion of or
exchange for any Debt Securities, Preferred Stock or Depositary Shares
that provide for conversion or exchange into other securities. No
separate consideration will be received for the Debt Securities.
Preferred Stock, Common Stock or depositary Shares issuable upon
conversion of or in exchange for Debt Securities or Preferred Stock.
(4) The number of shares of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act.
__________________
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.
__________________
Pursuant to Rule 429 under the Securities Act, this Registration
Statement contains a combined Prospectus that also relates to $200,000,000
principal amount of the debt securities previously registered pursuant to the
Company's Registration Statement on Form S-3 (File No. 33-47583) and not
issued. The filing fee associated with such securities was previously paid
with such Registration Statement. This Registration Statement constitutes
Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(File No. 33-47583) pursuant to which the total amount of unsold debt
securities previously registered under Registration Statement on Form S-3 (File
No. 33-47583) may be offered and sold as Debt Securities, Preferred Stock,
Depositary Shares, Common Stock and Warrants, without limitation as to class of
securities, together with the securities registered hereunder, through the
use of the combined Prospectus included herein. In the event any such
previously registered debt securities are offered prior to the effective date
of this Registration Statement, they will not be included in any Prospectus
hereunder.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED DECEMBER 11, 1995
PROSPECTUS
__________________
KMART CORPORATION
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES,
COMMON STOCK AND WARRANTS
__________________
Kmart Corporation (the "Company") may offer from time to time, together or
separately, (i) its debt securities (the "Debt Securities"), which may be
either senior debt securities (the "Senior Debt Securities") or subordinated
debt securities (the "Subordinated Debt Securities"), consisting of notes,
debentures or other secured or unsecured evidences of indebtedness in one or
more series, (ii) shares of its preferred stock, no par value (the "Preferred
Stock"), which may be issued in the form of depositary shares evidenced by
depositary receipts (the "Depositary Shares"), (iii) shares of its common
stock, par value $1.00 per share (the "Common Stock"), and (iv) warrants to
purchase Debt Securities, Preferred Stock, Depositary Shares, or Common Stock
or any combination thereof, as shall be designated by the Company at the time
of the offering (the "Warrants") in amounts, at prices and on terms to be
determined at the time of the offering. The Debt Securities, Preferred Stock,
Depositary Shares, Common Stock and Warrants are collectively called the
"Securities."
The Securities may be offered as separate series or issuances at an
aggregate initial public offering price not to exceed $1,200,000,000 or, if
applicable, the equivalent thereof in one or more foreign currencies, currency
units, composite currencies or in amounts determined by reference to an index
as shall be designated by the Company, in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale and set forth in
the applicable Prospectus Supplement.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities, when issued, will be subordinated in right of
payment to all Senior Debt (as hereinafter defined) of the Company. If the
Debt Securities are secured, the security, which may consist of real estate
properties or other assets owned by the Company, and any related mortgage will
be described in the Prospectus Supplement.
Certain specific terms of the particular Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement, including, where applicable, (i) in the case of Debt
Securities, the title, aggregate principal amount, denominations, maturity, any
interest rate (which may be fixed or variable) and time of payment of any
interest, any terms for redemption at the option of the Company or the holder,
any terms for sinking fund payments, any terms for conversion or exchange into
other Securities, currency or currencies of denomination and payment, if other
than U.S. dollars, any security applicable to Debt Securities which are
secured, any listing on a securities exchange and any other terms in connection
with the offering and sale of the Debt Securities in respect of which this
Prospectus is delivered, as well as the initial public offering price; (ii) in
the case of Preferred Stock and Depositary Shares, the specific title, the
aggregate amount, any dividend (including the method of calculating payment of
dividends), seniority, liquidation, redemption, voting and other rights, any
terms for any conversion or exchange into other Securities, any listing on a
securities exchange, the initial public offering price and any other terms,
(iii) in the case of Common Stock, the number of shares of Common Stock and the
terms of offering thereof; and (iv) in the case of Warrants, the designation
and number, the exercise price, any listing of the Warrants or the underlying
Securities on a securities exchange and any other terms in connection with the
offering, sale and exercise of the Warrants.
The Company's Common Stock is listed on the New York Stock Exchange, the
Chicago Stock Exchange and the Pacific Stock Exchange under the trading symbol
"KM." Any Common Stock sold pursuant to a Prospectus Supplement will be listed
on such exchange, subject to official notice of issuance.
The Securities may be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. See "Plan of Distribution." If agents of the Company or any dealers
or underwriters are involved in the sale of the Securities in respect of which
this Prospectus is being delivered, the names of such agents, dealers or
underwriters and any applicable commissions or discounts will be set forth in
or may be calculated from the Prospectus Supplement with respect to such
Securities. The net proceeds to the Company from such sale also will be set
forth in the applicable Prospectus Supplement.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
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 date of this Prospectus is __________, 1995
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
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<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT OR THE DOCUMENTS INCORPORATED OR DEEMED INCORPORATED BY
REFERENCE HEREIN, AND ANY INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN
OR THEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR
BY ANY AGENT, DEALER OR UNDERWRITER. THIS PROSPECTUS AND ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY THE SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements, and other information filed by
the Company can be inspected and copied at the public reference facilities of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: 7 World Trade Center, 13th Floor, New York, New York 10048; and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Company's Common Stock is listed on the New York Stock
Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange. Reports,
proxy statements and other information concerning the Company can be inspected
and copied at the offices of The New York Stock Exchange, Inc. ("New York Stock
Exchange"), 20 Broad Street, New York, New York 10005 and at the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on Form
S-3 under the Securities Act of 1933 (the "Securities Act") with respect to the
Securities offered hereby (the "Registration Statement"). This Prospectus and
any accompanying Prospectus Supplement do not contain all information set forth
in the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. Reference is made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act (File No. 1-327) are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended January 25, 1995;
(2) Quarterly Report on Form 10-Q for the quarter ended April 26, 1995;
(3) Quarterly Report on Form 10-Q for the quarter ended July 26, 1995;
(4) Quarterly Report on Form 10-Q for the quarter ended October 25, 1995;
(5) Current Report on Form 8-K filed on April 11, 1995;
(6) Current Report on Form 8-K filed on April 27, 1995;
(7) Current Report on Form 8-K filed on June 4, 1995;
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<PAGE> 4
(8) Current Report on Form 8-K filed on June 26, 1995;
(9) Current Report on Form 8-K filed on November 6, 1995; and
(10) Current Report on Form 8-K filed on November 14, 1995.
The consolidated financial statements included in the Annual Report and
Form 10-K filed for the fiscal year ended January 25, 1995 should be read in
connection with the discussion of the Company's current liquidity and financial
condition included in the Management's Discussion and Analysis included in Form
10-Q for the quarter ended October 25, 1995.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment which
indicates the termination of the offering of the Securities made by this
Prospectus shall be deemed to be incorporated by reference in this Prospectus
and to be a part of this Prospectus from the date of filing of such documents.
Any statement contained in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, or contained in
this Prospectus, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the documents
referred to above which have been or may be incorporated by reference in this
Prospectus (without exhibits to such documents other than exhibits specifically
incorporated by reference into such documents). Such written or oral request
should be directed to the Corporate Reporting Department, Kmart Corporation,
3100 West Big Beaver Road, Troy, Michigan 48084 (telephone number (810)
643-1093).
THE COMPANY
The Company is one of the world's largest mass merchandise retailers. The
dominant portion of the Company's business consists of the operation of a chain
of more than 2,100 Kmart discount stores with locations in each of the 50
United States, Puerto Rico, the U.S. Virgin Islands and Guam. Internationally,
the Company has operations in Canada, the Czech Republic and Slovakia and has
formed joint ventures in Mexico and Singapore, which as of October 25, 1995 had
opened seven stores, four in Mexico and three in Singapore. The Company's
Central European stores were acquired in mid-1992 and represent the Company's
entry into that market. The Company also holds significant equity interests in
substantially all of the Meldisco subsidiaries of Melville Corporation, which
operate the footwear departments in Kmart stores in the United States, and in
Thrifty PayLess Holdings Inc. and owns Builders Square, Inc., a home
improvement and home decor superstore retailer.
The Company was incorporated under the laws of the State of Michigan on
March 9, 1916. The principal executive offices of the Company are located at
3100 West Big Beaver Road, Troy, Michigan 48084, and its telephone number is
(810) 643-1000.
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<PAGE> 5
RATIOS OF EARNINGS TO FIXED CHARGES AND OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS (UNAUDITED)
<TABLE>
<CAPTION>
Trailing 52
Weeks Ended(a) Fiscal Year Ended
----------------- ---------------------------------------------------------------
October 25, October 26, January 25, January 26, January 27, January 29, January 30,
1995 1994 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges --(b) --(c) 1.2 --(d) 3.0 3.0 2.9
Ratio of earnings to combined fixed
charges and preferred stock dividends --(b) --(c) 1.1 --(d) 2.5 2.7 2.9
</TABLE>
In computing the ratios, earnings consist of pre-tax income from
continuing retail operations before extraordinary item and the effect of
accounting changes, less undistributed equity income of unconsolidated
affiliated retail companies, plus fixed charges (excluding capitalized
interest). Fixed charges represent total interest charges, a portion of
operating rentals representative of the interest factor, and amortization of
debt discount and expense. Certain prior year amounts have been restated for
the effect of discontinued operations.
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(a) Due to the seasonality of the Company's business, the ratio of earnings to
fixed charges is computed on a trailing 52-week basis.
(b) The deficiency of earnings from continuing retail operations versus fixed
charges was $256 million for the trailing 52 weeks ended October 25, 1995.
The deficiency of earnings from continuing retail operations versus
combined fixed charges and preferred dividends was $265 million for the
trailing 52 weeks ended October 25, 1995.
(c) The deficiency of earnings from continuing retail operations versus fixed
charges was $706 million for the trailing 52 weeks ended October 26, 1994.
Excluding the pre-tax provision of $1,130 million for store restructuring
and other charges, the ratio of earnings to fixed charges was 1.6 for the
trailing 52 weeks ended October 26, 1994. The deficiency of earnings from
continuing retail operations versus combined fixed charges and preferred
dividends was $774 million for the trailing 52 weeks ended October 26,
1994.
(d) The deficiency of earnings from continuing retail operations versus fixed
charges was $426 million for the fiscal year ended January 26, 1994.
Excluding the pre-tax provision of $1,130 million for store restructuring
and other charges, the ratio of earnings to fixed charges was 2.0 for the
fiscal year ended January 26, 1994. The deficiency of earnings from
continuing retail operations versus combined fixed charges and preferred
dividends was $514 million for the fiscal year ended January 26, 1994.
USE OF PROCEEDS
Unless otherwise specified in the attached Prospectus Supplement, the net
proceeds from the sale of the Securities will be used for general corporate
purposes.
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may not apply to the
Debt Securities so offered will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Debt Securities will be issued under an Indenture (the "Senior
Indenture"), to be entered into between the Company and the trustee named in
the Indenture. The Subordinated Debt Securities will be issued under a
separate Indenture (the "Subordinated Indenture"), to be entered into between
the Company and the trustee named in the Indenture. The Senior Indenture and
the Subordinated Indenture are sometimes referred to collectively as the
"Indentures." Copies of the forms of the Senior Indenture and the Subordinated
Indenture have been filed as exhibits to the Registration Statement. The
trustees under the Senior Indenture and under the Subordinated Indenture are
referred to herein as the "Trustees."
The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures do not purport
to be complete and are subject to, and qualified in their entirety by reference
to, all the provisions of the Indenture applicable to a particular series of
Debt Securities, including the definitions therein of certain terms. Wherever
particular Sections, Articles or defined terms of the Indentures are referred
to herein or in a Prospectus Supplement, it is intended that such Sections,
Articles or defined terms shall be incorporated by reference herein or therein,
as the case may be. Section and Article references used herein are references
to the applicable Indenture. Except as otherwise indicated, the terms of the
Senior Indenture and the Subordinated Indenture are identical. Capitalized
terms not otherwise defined herein shall have the meanings given to them in the
applicable Indenture.
GENERAL
The Indentures will not limit the aggregate principal amount of Debt
Securities which may be issued thereunder, and each Indenture provides that
Debt Securities may be issued thereunder from time to time in one or more
series up to the aggregate amount from time to time authorized by the Company
for each series. (Section 3.1) Unless otherwise specified in the Prospectus
Supplement, the Senior Debt Securities when issued will be unsecured and
unsubordinated obligations of the Company and will rank equally and ratably
with all other unsecured and unsubordinated indebtedness of the Company.
Unless otherwise specified in the Prospectus Supplement, the Subordinated Debt
Securities when issued will be unsecured obligations of the Company,
subordinated in right of payment to the prior payment in full of all Senior
Debt (as defined in the Subordinated Indenture) of the Company as described in
the applicable Prospectus Supplement. (Section 15.1 of the Subordinated
Indenture) If the Debt Securities are secured, the security, which may consist
of real estate properties or other assets owned by the Company, and any related
mortgage will be described in the Prospectus Supplement.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for a description of the following
terms or additional provisions of the Debt Securities: (1) the title of the
Debt Securities; (2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (3) any limit on the aggregate principal amount
of the Debt Securities; (4) whether the Debt Securities are to be issuable as
Registered Securities or Bearer Securities or both, whether any of the Debt
Securities shall be issuable in whole or in part in temporary or permanent
global form or in the form of Book-Entry Securities and, if so, the
circumstances under which any such global securities or Book-Entry Securities
may be exchanged for Debt Securities registered in the name of, and any
transfer of such global or Book-Entry Securities may be registered to, a Person
other than the depository for such temporary or permanent global securities or
Book-Entry Securities or its nominee; (5) the price or prices (expressed as a
percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (6) the date or dates on which the Debt Securities
will mature; (7) the rate or rates per annum at which the Debt Securities will
bear
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interest, if any, and the date from which any such interest will accrue; (8)
the Interest Payment Dates on which any such interest on the Debt Securities
will be payable, the Regular Record Date for any interest payable on any Debt
Securities which are Registered Securities on any Interest Payment Date 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; (9) any mandatory or
optional sinking fund or analogous provisions; (10) each office or agency
where, subject to the terms of the applicable Indenture as described below
under "Payment and Paying Agents," the principal of and any premium and
interest on the Debt Securities will be payable and each office or agency
where, subject to the terms of the applicable Indenture as described below
under "Form, Exchange, Registration and Transfer," the Debt Securities may be
presented for registration of transfer or exchange; (11) the date, if any,
after which and the price or prices at which the Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed, in whole or in
part, and the other detailed terms and provisions of any such optional or
mandatory redemption provisions, which may include with respect to a particular
series or particular Debt Securities within a series, a redemption option of
Holders upon certain conditions, as defined in the applicable Indenture; (12)
the denominations in which any Debt Securities which are Registered Securities
will be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Debt
Securities which are Bearer Securities will be issuable, if other than the
denomination of $5,000; (13) the currency or currency units of payment of the
principal of (and premium, if any) and interest on the Debt Securities; (14)
any index used to determine the amount of payments of the principal of (and
premium, if any) and interest on the Debt Securities and the manner in which
such amounts shall be determined; (15) the terms and conditions, if any,
pursuant to which such Debt Securities are convertible or exchangeable into a
security or securities of the Company; (16) the terms pursuant to which such
Debt Securities are subject to defeasance; (17) the terms and conditions, if
any, pursuant to which such Debt Securities are secured; and (18) any other
terms of the Debt Securities not inconsistent with the provisions of the
applicable Indenture. Any such Prospectus Supplement will also describe any
special provisions for the payment of additional amounts with respect to the
Debt Securities. Debt Securities may also be issued under the Indenture upon
the exercise of Warrants. See "Description of Warrants."
Debt Securities may be issued as Original Issue Discount Securities.
An Original Issue Discount Security is a Debt Security, including any
Zero-Coupon Security, which is issued at a price lower than the amount payable
upon the Stated Maturity thereof and which provides that upon redemption or
acceleration of the maturity, an amount less than the amount payable upon the
Stated Maturity, determined in accordance with the terms of such Debt Security,
shall become due and payable. (Sections 3.1 and 5.2) Certain special United
States federal income tax considerations applicable to Debt Securities sold at
an original issue discount will be described in the Prospectus Supplement
relating thereto. In addition, certain special United States federal income tax
or other considerations applicable to any Debt Securities which are denominated
in a currency or currency unit other than United States dollars may be
described in the applicable Prospectus Supplement relating thereto.
Under the Indentures, the Company will have the ability, in addition to
the ability to issue Debt Securities with terms different from those of Debt
Securities previously issued, without the consent of the holders, to reopen a
previous issue of a series of Debt Securities and issue additional Debt
Securities of such series (unless such reopening was restricted when such
series was created), in an aggregate principal amount determined by the
Company. (Section 3.1)
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. (Section 3.1) Unless otherwise indicated in
an applicable Prospectus Supplement, Bearer Securities will have interest
coupons attached. (Section 2.1) The Indentures also will provide that Debt
Securities of a series may be issuable in temporary or permanent global form
and may be issued as Book-Entry Securities that will be deposited with, or on
behalf of, The Depository Trust Company (the "Depository") or another
depository named by the Company and identified in a Prospectus Supplement with
respect to such series. See "Global and Book-Entry Debt Securities."
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<PAGE> 8
In connection with its original issuance, no Bearer Security (including a
Debt Security exchangeable for a Bearer Security or a Debt Security in global
form that is either a Bearer Security or exchangeable for Bearer Securities)
shall be mailed or otherwise delivered to any location in the United States (as
defined under "Limitations on Issuance of Bearer Securities") and a Bearer
Security may be delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security furnishes written certification
of the beneficial ownership of the Bearer Security as required by Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(3) (or any comparable successor
provisions). In the case of a Bearer Security in permanent global form, such
certification must be given in connection with notation of a beneficial owner's
interest therein in connection with the original issuance of such Debt
Security. See "Global and Book-Entry Debt Securities" and "Limitations on
Issuance of Bearer Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Debt Securities
of any series are issuable as both Registered Securities and Bearer Securities,
at the option of the Holder upon request confirmed in writing, and subject to
the terms of the applicable Indenture, Bearer Securities (with all unmatured
coupons, except as provided below, and all matured coupons in default) of such
series will be exchangeable into Registered Securities of the same series of
any authorized denominations and of a like aggregate principal amount and
tenor. Bearer Securities surrendered in exchange for Registered Securities
between a Regular Record Date or a Special Record Date and the relevant date
for payment of interest shall be surrendered without the coupon relating to
such date for payment of interest and interest accrued as of such date will not
be payable 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 terms of the applicable Indenture. Registered
Securities will not be issued in exchange for Bearer Securities (Section 3.5).
Each Bearer Security, and any coupon attached thereto, other than a temporary
global Bearer Security will bear the following legend: "Any United States
person who holds this obligation will be subject to limitations under the
United States income tax laws, including the limitations provided in Sections
165(j) and 1287(a) of the United States Internal Revenue Code." A Book-Entry
Security may not be registered for transfer or exchange (other than as a whole
by the Depository to a nominee or by such nominee to such Depository) unless
the Depository or such nominee notifies the Company that it is unwilling or
unable to continue as Depository or the Depository ceases to be qualified as
required by the applicable Indenture or the Company instructs the Trustee in
accordance with the applicable Indenture that such Book-Entry Securities shall
be so registrable and exchangeable or there shall have occurred and be
continuing an Event of Default or an event which after notice or lapse of time
would be an Event of Default with respect to the Debt Securities evidenced by
such Book-Entry Securities or there shall exist such other circumstances if
any, as may be specified in the applicable Prospectus Supplement.
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented or surrendered for registration of
transfer or for exchange (with the form of transfer endorsed thereon duly
executed), at the office of the Security Registrar or at the office of any
transfer agent designated by the Company for such purpose with respect to any
series of Debt Securities and referred to in an applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the applicable Indenture. Such transfer
or exchange will be effected upon the Security Registrar or such transfer
agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request. If a Prospectus Supplement refers
to any transfer agents (in addition to the Security Registrar) 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 any such transfer agent acts,
except that, if Debt Securities of a series are issuable solely as Registered
Securities, the Company will be required to maintain a transfer agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States.
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The Company may at any time designate additional transfer agents with respect
to any series of Debt Securities. (Section 10.2)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Debt Securities of any
series during a period beginning at the opening of business 15 days before any
selection of Debt Securities of that series to be redeemed and ending at the
close of business on (A) if Debt Securities of the series are issuable only as
Registered Securities, the day of mailing of the relevant notice of redemption
and (B) if Debt Securities of the series are issuable as Bearer Securities, the
day of the first publication of the relevant notice of redemption or, if Debt
Securities of the series are also issuable as Registered Securities and there
is no publication, the mailing of the relevant notice of redemption; (ii)
register the transfer of or exchange any Registered Security being redeemed in
part, except the unredeemed portion of any Registered Security being redeemed
in part; or (iii) exchange any Bearer Security so selected for redemption,
except that such Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption. (Section 3.5)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of the principal of (and premium, if any) and interest on Bearer Securities
will be made, subject to any applicable laws and regulations, at the offices of
such Paying Agents outside the United States as the Company may designate from
time to time, at the option of the Holder, by check or by transfer to an
account maintained by the payee with a bank located outside the United States.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
interest on Bearer Securities on any Interest Payment Date will be made only
against surrender to the Paying Agent of such coupon relating to such Interest
Payment Date. (Section 10.1) No payment with respect to any Bearer Security
will 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. Notwithstanding the
foregoing, payments of the principal of (and premium, if any) and interest on
Bearer Securities denominated and payable in U.S. dollars will 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 of the full amount thereof in U.S. dollars
at all offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 10.2)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of the principal of (and premium, if any) and interest on Registered Securities
will be made at the office of such Paying Agent or Paying Agents as the Company
may designate from time to time, except that at the option of the Company
payment of any interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
any installment of interest on Registered Securities will be made to the Person
in whose name such Registered Security is registered at the close of business
on the Regular Record Date for such interest. (Section 3.7)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in The City of New York will be
designated as a Paying Agent for the Company for payments with respect to Debt
Securities which are issuable solely as Registered Securities and the Company
will maintain a Paying Agent outside of the United States for payments with
respect to Debt Securities (subject to the limitations described above in the
case of Bearer Securities) which are issuable solely as Bearer Securities or
both Registered Securities and Bearer Securities. (Section 10.2) Any Paying
Agents outside the United States and any other Paying Agent in the United
States initially designated by the Company for the Debt Securities will be
named in an applicable Prospectus Supplement. The Company may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that, if Debt Securities of a series are issuable solely as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt
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Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain (i) a Paying Agent in the Borough of Manhattan, The City
of New York for payments with respect to any Registered Securities of the
series (and for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Debt Securities of
such series and any coupons appertaining thereto may be presented and
surrendered for payment; provided that if the Debt Securities of such series
are listed on The Stock Exchange of the United Kingdom and the Republic of
Ireland or the Luxembourg 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 in London or Luxembourg or any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series. (Section 10.2)
Payments of the principal of (and premium, if any) and interest on
Book-Entry Securities registered in the name of any 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 representing such Book-Entry
Securities. The Company expects that the Depository, upon receipt of any
payment of the principal of (and premium, if any) or interest, will credit
immediately participants' accounts with payments in amounts proportionate to
their respective beneficial interests as shown on the records of such
Depository or its nominee. Neither the Company, the Trustee, any Paying Agent
nor the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspects of the records relating to, or
payments made on account of, such beneficial ownership interests in the
Book-Entry Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
All moneys paid by the Company to a Paying Agent for the payment of the
principal of (and premium, if any) or interest on any Debt Securities which
remain unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to the Company and
the Holder of such Debt Security or any coupon will thereafter, as an unsecured
general creditor, look only to the Company for payment thereof. (Section 10.3)
GLOBAL AND BOOK-ENTRY DEBT SECURITIES
If so specified in an applicable Prospectus Supplement, the portion of the
Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary or permanent global Debt
Securities, without interest coupons, to be deposited with a common depositary
in London for the benefit of Euro-clear System ("Euro-clear") and Cedel Bank,
Societe Anonyme ("Cedel") for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as they
may direct). (Section 3.4) Unless otherwise indicated by an applicable
Prospectus Supplement, on or after 40 days following its issuance, each such
temporary global Debt Security will be exchangeable for definitive Bearer
Securities, definitive Registered Securities or all or a portion of a permanent
global Debt Security, or any combination thereof, as specified in an applicable
Prospectus Supplement, only upon written certification in the form and to the
effect described under "Form, Exchange, Registration and Transfer." No Bearer
Security (including a Debt Security in permanent global form) delivered in
exchange for a portion of a temporary or permanent global Debt Security shall
be mailed or otherwise delivered to any location in the United States in
connection with such exchange. (Section 3.5)
A person having a beneficial interest in a permanent global Debt Security
will, except with respect to payment of the principal of (and premium, if any)
and interest on such permanent global Debt Security, be treated as a Holder of
such principal amount of Outstanding Debt Securities represented by such
permanent global Debt Security as shall be specified in a written statement of
the Holder of such permanent global Debt Security or, in the case of a
permanent global Debt Security in bearer form, of the operator of Euro-clear or
Cedel which is provided to the Trustee by such Person. (Section 2.3)
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If Debt Securities to be sold in the United States are designated by the
Company in a Prospectus Supplement as Book-Entry Securities, a global security
representing the Book-Entry Securities will be deposited in the name of Cede &
Co., as nominee for the Depository representing the securities to be sold in
the United States. Upon such deposit of the Book-Entry Securities, the
Depository shall credit an account maintained or designated by an institution
to be named by the Company or any purchaser of the Debt Securities represented
by the Book-Entry Securities with an aggregate amount of Debt Securities equal
to the total number of Debt Securities that have been so purchased. The
specific terms of any depository arrangement with respect to any portion of a
series of Debt Securities to be represented by one or more global securities
will be described in the applicable Prospectus Supplement. Beneficial interests
in such Debt Securities will only be evidenced by, and transfers thereof will
only be effected through, records maintained by the Depository and the
institutions that are Depository participants.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Debt. (Section 15.1 of the Subordinated Indenture) In
the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in connection therewith, relative to the Company or to its creditors, as such,
or to its assets, or (b) any liquidation, dissolution or other winding up of
the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event the holders of Senior Debt shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior Debt,
or provision shall be made for such payment in cash, before the Holders of
Subordinated Debt Securities are entitled to receive any payment on account of
principal of (or premium, if any) or interest on Subordinated Debt Securities,
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of
Subordinated Debt Securities, which may be payable or deliverable in respect of
the Subordinated Debt Securities in any such case, proceeding, dissolution,
liquidation or other winding up event. (Section 15.2 of the Subordinated
Indenture)
By reason of such subordination, in the event of liquidation or
insolvency, creditors of the Company may recover less, ratably, than Holders of
Senior Debt and may recover more, ratably, than the Holders of the Subordinated
Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the Holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment upon the principal of (and premium, if any) or
interest on, the Subordinated Debt Securities. (Section 15.3 of the
Subordinated Indenture)
No payments on account of the principal of (and premium, if any) or
interest in respect of the Subordinated Debt Securities may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Debt, or an event of default with respect to any Senior Debt resulting
in the acceleration of the maturity thereof, or if any judicial proceeding
shall be pending with respect to any such default. (Section 15.4 of the
Subordinated Indenture) For purposes of the subordination provisions, the
payment, issuance and delivery of cash, property or securities (other than
stock and certain subordinated securities of the
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Company) upon conversion of a Subordinated Debt Security will be deemed to
constitute payment on account of the principal of such Subordinated Debt
Security. (Section 15.15 of the Subordinated Indenture)
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Debt, which may include indebtedness that is senior to the
Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities constitute Senior Debt under the
Subordinated Indenture.
"Senior Debt" is defined to include the principal of (and premium, if any)
and interest (including interest accrued on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company to the extent that
such claim for post-petition interest is allowed in such proceeding) on all
indebtedness of the Company (including indebtedness of others guaranteed by the
Company), other than the Subordinated Debt Securities, whether outstanding on
the date of the Subordinated Indenture or thereafter created, incurred or
assumed, which is (i) for money borrowed, (ii) evidenced by a note or similar
instrument given in connection with the acquisition by the Company or any
subsidiary of the Company of any businesses, properties or assets of any kind,
(iii) obligations of the Company as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles or leases of property or assets made as part of any sale
and leaseback transaction to which the Company is a party, and (iv) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligation, unless in any case the instrument creating or evidencing any such
indebtedness or obligation or pursuant to which the same is outstanding is
provided that such indebtedness or obligation is not superior in right of
payment to the Subordinated Debt Securities. (Section 1.1 of the Subordinated
Indenture)
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
CONVERSION OR EXCHANGE RIGHTS
The terms on which Debt Securities of any series are convertible into or
exchangeable for Common Stock or other securities of the Company will be set
forth in the Prospectus Supplement relating thereto. Such terms will include
provisions as to whether conversion or exchange is mandatory, at the option of
the Holder or at the option of the Company, and may include provisions pursuant
to which the number of shares of Common Stock or other securities of the
Company to be received by the Holders of Debt Securities would be subject to
adjustment. (Section 3.1 and Article XIV)
SECURITY FOR SECURED DEBT SECURITIES
The terms and conditions pursuant to which the Debt Securities of any
series are secured, a description of the security, which may consist of real
estate properties or other assets owned by the Company, and the related
mortgage will be set forth in the Prospectus Supplement relating thereto.
(Section 3.1)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not merge or consolidate or sell or convey all or
substantially all of its assets unless the successor corporation (if other than
the Company) is a domestic corporation and assumes the Company's obligations on
the Debt Securities and under the applicable Indenture, and unless after giving
effect to such transaction the Company or the successor corporation would not
be in default under the applicable Indenture. (Section 8.1)
Unless otherwise specified in the Prospectus Supplement, the Indentures
contain no restrictive covenant that would afford holders of the Debt
Securities protection in the event of a change in control or a highly leveraged
transaction involving the Company or any of its affiliates.
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EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the applicable Indenture with respect to Debt Securities of any series: (a)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days (in the case of the Subordinated Indenture, whether or
not such payment is prohibited by the subordination provisions); (b) failure to
pay the principal of (or premium, if any) on any Debt Security of that series
when due (in the case of the Subordinated Indenture, whether or not such
payment is prohibited by the subordination provisions); (c) failure to deposit
any sinking fund payment, when due, in respect of any Debt Security of that
series (in the case of the Subordinated Indenture, whether or not such deposit
is prohibited by the subordination provisions); (d) failure to perform any
other covenant of the Company in the applicable Indenture or such Debt Security
(other than a covenant included in the applicable Indenture solely for the
benefit of a series of Debt Securities other than that series), continued for
90 days after written notice has been given as provided in the applicable
Indenture; (e) certain events in bankruptcy, insolvency or reorganization
involving the Company; or (f) any other Event of Default provided with respect
to the Debt Securities of that series. (Section 5.1) No event of default
described in clause (a), (b), (c) or (d) above with respect to a particular
series of Debt securities necessarily constitutes an Event of Default with
respect to any other series of Debt Securities.
The Indentures provide that if an Event of Default under clauses (a), (b),
(c) or (d) above shall have occurred and be continuing (but in the case of
clause (d), only if the Event of Default is with respect to less than all
series of Debt Securities then outstanding), either the Trustee or the holders
of not less than 25% in aggregate principal amount of the then outstanding Debt
Securities of the series affected by such Event of Default (each such monies
voting as a separate class) may declare the principal (or portion thereof
specified in the terms of any series) of all the Debt Securities of such
series, together with any accrued interest, to be due and payable immediately.
If an Event of Default under clause (d) (if the Event of Default under clause
(d) is with respect to all of the series of Debt Securities then outstanding),
or (e) above shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all the Debt
Securities then outstanding (voting as one class) may declare the principal (or
portion thereof specified in the terms of the series) of all the Debt
Securities, together with any accrued interest, to be due and payable
immediately. Upon certain conditions such declaration (including a declaration
caused by a default in the payment of principal or interest, the payment for
which has subsequently been provided) may be annulled by the holders of a
majority in principal amount of the Debt Securities of each series as was
entitled to declare such default (each such series voting as a separate class)
or of all the Debt Securities voting as one class, as the case may be. In
addition, past defaults may be waived by the holders of a majority in principal
amount of the Debt Securities of each series as was entitled to declare such
default (each such series voting as a separate class) or of all the Debt
Securities voting as one class, as the case may be, except a default in the
payment of principal or interest on the Debt Securities or in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the approval of the holder of each Debt Security affected (Section
5.2).
The Indentures will provide that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable indemnity. (Section
6.1) Subject to such provisions for the indemnification of the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustees or
exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of that series. (Section 5.12)
The Company will be required to furnish to the applicable Trustee annually
a statement as to the performance of certain of its obligations under the
applicable Indenture and as to any default in such performance. (Section 10.7)
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DEFEASANCE AND DISCHARGE
If so specified with respect to any particular series of Debt Securities,
the Company may discharge its indebtedness and its obligations or certain of
its obligations under the applicable Indenture with respect to such series by
depositing funds or obligations issued or guaranteed by the United States of
America with the Trustee. (Section 4.3)
The Indentures will provide that, if so specified with respect to the Debt
Securities of any series, the Company will be discharged from any and all
obligations in respect of the Debt Securities of such series (including, in the
case of Subordinated Debt Securities, the subordination provisions described
under "Subordination of Subordinated Debt Securities" herein and, except for
certain obligations relating to temporary Debt Securities and exchange of Debt
Securities, registration of transfer or exchange of Debt Securities of such
series, replacement of stolen, lost or mutilated Debt Securities of such
series, maintenance of paying agencies, to hold monies for payment in trust and
payment of additional amounts, if any, required in consequence of United States
withholding taxes imposed on payments to non-United States persons) upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any), each installment of interest on, and
any sinking fund payments on, the Debt Securities of such series on the Stated
Maturity of such payments in accordance with the terms of the applicable
Indenture and the Debt Securities of such series. (Section 4.6) Such a trust
may only be established if, among other things, (a) the Company has delivered
to the applicable Trustee an Opinion of Counsel to the effect 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 the applicable Indenture there has
been a change in applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of Debt Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance
and discharge, and will be subject to federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred; (b) the Debt
Securities of such series, if then listed on any domestic or foreign securities
exchange, will not be delisted as a result of such deposit, defeasance and
discharge; and (c) in the case of the Subordinated Debt Securities, (x) no
default in the payment of the principal of (and premium, if any) or any
interest on any Senior Debt beyond any applicable grace period shall have
occurred and be continuing, or (y) no other default with respect to any Senior
Debt shall have occurred and be continuing and shall have resulted in the
acceleration of such Senior Debt. In the event of any such defeasance and
discharge of Debt Securities of such series, Holders of Debt Securities of such
series would be able to look only to such trust fund for payment of principal
of and any premium and any interest on their Debt Securities until Maturity.
(Section 4.6)
DEFEASANCE OF CERTAIN OBLIGATIONS
The Indentures will provide that, if so specified with respect to the Debt
Securities of any series, the Company may omit to comply with any covenants
applicable to such Debt Securities which are subject to covenant defeasance and
any such omission shall not be an Event of Default with respect to the Debt
Securities of such series, upon the irrevocable deposit with the Trustee, in
trust, of money and/or U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and
premium, if any), each installment of interest on and any sinking fund payments
thereof and in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any), and each installment
of principal (and premium, if any) and interest on the Debt Securities of such
series on the Stated Maturity of such payments or upon optional redemption and
any mandatory sinking fund payments or analogous payments on the Debt
Securities of such series on the day on which such payments are due and payable
in accordance with the terms of the applicable Indenture and the Debt
Securities of such series. (Sections 4.5 and 4.6) The obligations of the
Company under the applicable Indenture and the Debt Securities of such series
other than with respect to such covenants shall remain in full force and
effect. (Section 4.5) Such a trust may be established only if, among
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other things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the Holders of the Debt Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge of certain obligations and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred and (ii) the Debt Securities of such series, if then
listed on any domestic or foreign securities exchange, will not be delisted as
a result of such deposit, defeasance and discharge. (Section 4.6)
In the event the Company exercises its option to omit compliance with the
covenants described in any Prospectus Supplement with respect to the Debt
Securities of such series and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default, then the amount of money and
U.S. Government Obligations on deposit with the Trustee will be sufficient to
pay amounts due on the Debt Securities of such series at the time of their
Stated Maturity but may not be sufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from such
Default. The Company shall in any event remain liable for such payments as
provided in the Indentures.
The Trustee must deliver or pay to the Company from time to time, upon
request of the Company, any amounts held by it with respect to any Securities
which, in the opinion of a nationally recognized firm of independent public
accountants, are in excess of the amount which would then be required to be
deposited to effect a satisfaction, discharge or defeasance, as the case may
be, with respect to such Securities.
MEETINGS, MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the Company
and the Trustee under the applicable Indenture with the consent of the Holders
of not less than a majority in principal amount of the Outstanding Debt
Securities issued under the applicable Indenture and affected by such
modification or amendment unless a greater percentage of such principal amount
is specified in the applicable Prospectus Supplement; provided, however, that
no such modification or amendment may, without the consent of each Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated Maturity
of the principal of, or any installment of principal of or interest on, any
such Debt Security, (b) reduce the principal amount of (and premium, if any) or
interest on, any such Debt Security, (c) change any obligation of the Company
to pay additional amounts, (d) reduce the amount of principal of an Original
Issue Discount Security or any other Debt Security payable upon acceleration of
the maturity thereof, (e) change the coin or currency in which any Debt
Security or any premium or interest thereon is payable, (f) impair the right to
institute suit for the enforcement of any payment on or with respect to any
such Debt Security, (g) adversely change the right to convert or exchange,
including decreasing the conversion rate or increasing the conversion price of,
such Debt Security (if applicable), (h) in the case of the Subordinated
Indenture, modify the subordination provisions in a manner adverse to the
Holders of the Subordinated Debt Securities, (i) if the Debt Securities are
secured, change the terms and conditions pursuant to which the Debt Securities
are secured in a manner adverse to the Holders of the secured Debt Securities,
(j) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the applicable Indenture or for waiver of compliance with certain
provisions of the applicable Indenture or for waiver of certain defaults, (k)
reduce the requirements contained in the applicable Indenture for quorum or
voting, (l) change any obligations of the Company to maintain an office or
agency in the places and for the purposes required by the Indentures, or (m)
modify any of the above provisions. (Section 9.2)
Modifications and amendments of the Indentures may be made by the Company
and the Trustee under the applicable Indenture without the consent of any
Holder to evidence a successor to the Company, to add to the Company's
covenants or Events of Default, to permit or facilitate Debt Securities to be
issued by book entry or in bearer form or relating to the place of payment
thereof, to provide for a successor trustee, to establish forms or terms of
Debt Securities, to change or eliminate any provisions not adversely affecting
any interests of Holders of Outstanding Debt Securities in any material respect
or to cure any ambiguity or inconsistency.
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The Holders of at least a majority in principal amount of the Outstanding
Debt Securities of each series may, on behalf of the Holders of all the Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the applicable
Indenture and, if applicable, such Debt Securities, unless a greater percentage
of such principal amount is specified in the applicable Prospectus Supplement.
(Section 5.13)
The applicable Indenture will provide that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities
have given any request, demand, authorization, direction, notice, consent or
waiver thereunder or are present at a meeting of Holders of Debt Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof, and (ii) the principal
amount of a Debt Security denominated in a foreign currency or currency units
shall be the U.S. dollar equivalent, determined on the date of original
issuance of such Debt Security, of the principal amount of such Debt Security
or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent, determined on the date of original issuance of such Debt Security,
of the amount determined as provided in (i) above.
The applicable Indenture will contain provisions for convening meetings of
the Holders of Debt Securities of a series if Debt Securities of that series
are issuable as Bearer Securities. A meeting may be called at any time by the
Trustee, and also, upon request, by the Company or the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of such series, in any
such case upon notice given in accordance with "Notices" below. (Sections 13.1
and 13.2) Except for any consent which must be given by the Holder of each
Outstanding Debt Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series; provided, however,
that, except for any consent which must be given by the Holder of each
Outstanding Debt Security affected thereby, as described above, any resolution
with respect to any consent or waiver which may be given by the Holders of not
less than a majority in principal amount of the Outstanding Debt Securities of
a series may be adopted at a meeting or an adjourned meeting at which a quorum
is present only by the affirmative vote of a majority in principal amount of
the Outstanding Debt Securities of that series; and provided, further, that,
except for any consent which must be given by the Holder of each Outstanding
Debt Security affected thereby, as described above, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other action which may be made, given or taken by the Holders of a specified
percentage, which is less than a majority in principal amount of the
Outstanding Debt Securities of a series may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in the principal
amount of the Outstanding Debt Securities of that series. Any resolution passed
or decision taken at any meeting of Holders of Debt Securities of any series
duly held in accordance with the applicable Indenture will be binding on all
Holders of Debt Securities of that series and the related coupons. The quorum
at any meeting called to adopt a resolution or with respect to a consent or a
waiver which may be given by the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of a series, and at any
reconvened meeting, will be persons holding or representing a majority in
principal amount of the Outstanding Debt Securities of a series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which may be given by the Holders of not less than a majority
in principal amount of the Outstanding Debt Securities of a series then, with
respect to such action (and only such action) the Holders entitled to vote such
lesser or greater percentage in principal amount of the Outstanding Securities
of such series shall constitute a quorum. (Section 13.4)
NOTICES
Except as otherwise provided in the applicable Indenture, notices to
Holders of Bearer Securities will be given by publication at least twice in a
daily newspaper in The City of New York and in such other city or cities as may
be specified in such Debt Securities. Notices to Holders of Registered
Securities will be given by mail to the address of such Holders as they appear
in the Security Register. (Section 1.6)
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TITLE
Title to any temporary global Debt Security, any Bearer Securities
(including Bearer Securities in permanent global form) and any coupons
appertaining thereto will pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the bearer of any Bearer Security
and the bearer of any coupon and the registered owner of any Registered
Security as the absolute owner thereof (whether or not such Debt Security or
coupon shall be overdue and notwithstanding any notice to the contrary) for the
purpose of making payment and for all other purposes. (Section 3.8)
REPLACEMENT OF DEBT SECURITIES AND COUPONS
Any mutilated Debt Security or a Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
Holder upon surrender of such Debt Security to the Trustee. Debt Securities or
coupons that became destroyed, stolen or lost will be replaced by the Company
at the expense of the Holder upon delivery to the Trustee of the Debt Security
and coupons or evidence of the destruction, loss or theft thereof satisfactory
to the Company and the Trustee; in the case of any coupon which becomes
destroyed, stolen or lost, such coupon will be replaced by issuance of a new
Debt Security in exchange for the Debt Security to which such coupon
appertains. In the case of a destroyed, lost or stolen Debt Security or
coupon, an indemnity satisfactory to the Trustee and the Company may be
required at the expense of the Holder of such Debt Security or coupon before a
replacement Debt Security will be issued. (Section 3.6)
GOVERNING LAW
The Indentures, the Debt Securities and the coupons will be governed by,
and construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of laws. (Section 1.13)
REGARDING THE TRUSTEE
The Indentures contain limitations on the right of the Trustee, as a
creditor of the Company, to obtain payment of claims in certain cases or to
realize on certain property received in respect of any such claim as security
or otherwise. (Section 6.10) In addition, the Trustee may be deemed to have a
conflicting interest and may be required to resign as Trustee if at the time of
a default under one of the Indentures it is a creditor of the Company. (Section
6.8) The Company may from time to time maintain deposit accounts and conduct
its banking transactions with a Trustee in the ordinary course of business.
(Section 6.3)
DESCRIPTION OF CAPITAL STOCK
Under the Restated Articles of Incorporation, as amended, of the Company
(the "Articles"), the authorized capital stock of the Company consists of
1,500,000,000 shares of Common Stock, $1.00 par value, and 10,000,000 shares of
Preferred Stock, no par value ("Preferred Stock"). As of October 25, 1995,
there were outstanding (a) 459,366,367 shares of Common Stock, (b) 654,815
shares of Series C convertible preferred stock, no par value per share, and (c)
employee stock options to purchase an aggregate of approximately 26,926,231
shares of Common Stock.
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DESCRIPTION OF COMMON STOCK
GENERAL
Subject to the prior rights of the holders of Preferred Stock, including
the Series C convertible preferred stock, and except as set forth below, the
holders of Common Stock are entitled to receive, when and as declared by the
board of directors, out of the assets of the Company which by law are available
therefor, dividends payable either in cash, in property, or in Common Stock.
No dividends (other than dividends payable in Common Stock) may be paid on the
Common Stock if cash dividends in full on all outstanding Preferred Stock to
which the holders thereof are entitled shall not have been paid or declared and
set apart for payment or if any sinking fund for the Preferred Stock is in
arrears.
At every meeting of stockholders, the holders of Common Stock shall have
the right with the holders of Preferred Stock, voting as a single class, to
vote in the election of directors and upon each other matter coming before any
meeting of the stockholders on the basis of one vote for each share of Common
Stock or Preferred Stock held.
In the event of any liquidation, dissolution or winding up of the business
of the Company, whether voluntary or involuntary, the holders of Common Stock
shall be entitled, after payment or provisions for payment of the debts and
other liabilities of the Company and the amounts to which the holders of
Preferred Stock are entitled, to share ratably in the remaining net assets of
the Company.
The holders of Common Stock have no preemptive rights, cumulative voting
rights or subscription rights. The Common Stock is listed on the New York
Stock Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange.
First National Bank of Boston, N.A. is the Transfer Agent, Registrar and
Dividend Paying Agent for the Common Stock.
CERTAIN PROVISIONS
The Articles and bylaws of the Company contain provisions, summarized
below, that could have the effect of delaying, deterring or preventing a
merger, tender offer or other takeover attempt of the Company. This summary
does not purport to be complete and is subject to, and qualified in its
entirety by, the provisions of the Articles and the bylaws, as well as the
provisions of any applicable laws.
The board of directors is divided into three classes of directors serving
staggered three-year terms, with a minimum of seven directors and a maximum of
21 directors constituting the entire board of directors. The directors may be
removed by the vote of the holders of a majority of the shares entitled to vote
at an election of directors only for cause or by the vote of a majority of the
directors with or without cause. The total number of directors and the number
of directors constituting each class of directors (with each of the three
classes being required to be equal as nearly as possible) can be fixed or
changed, from time to time, by the board of directors within such authorized
limits. Incumbent directors are delegated the power to fill any vacancies on
the board of directors, however occurring, whether by an increase in the number
of directors, death, resignation, retirement, disqualification, removal from
office or otherwise. In addition, provisions in the Company's bylaws require
stockholders to give advance notice of proposals to be presented at meetings of
stockholders, including director nominations.
The Company is subject to Chapter 7A of the Michigan Business Corporation
Act (the "MBCA"), which provides that business combinations subject to Chapter
7A between a Michigan corporation and a beneficial owner of shares entitled to
10% or more of the voting power of such corporation generally require the
affirmative vote of 90% of the votes of each class of stock entitled to vote,
and not less than 2/3 of each class of stock entitled to vote (excluding voting
shares owned by such 10% owner), voting as a separate class.
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Such requirements do not apply if (i) the corporation's board of directors
approves the transaction prior to the time the 10% owner becomes such or (ii)
the transaction satisfies certain fairness standards, certain other conditions
are met and the 10% owner has been such for at least five years.
Chapter 7B of the MBCA provides that, unless a corporation's articles of
incorporation or bylaws provide that Chapter 7B does not apply, "control
shares" of a corporation acquired in a control share acquisition have no voting
rights except as granted by the stockholders of the corporation. "Control
shares" are shares which, when added to shares previously owned by a
stockholder, increase such stockholder's ownership of voting stock to more than
20% but less than 33 1/3%, more than 33 1/3% but less than a majority, or more
than a majority, of the votes to which all of the capital stock of the
corporation is entitled. A control share acquisition must be approved by the
affirmative vote of a majority of all shares entitled to vote excluding voting
shares owned by the acquiror and certain officers and directors. However, no
such approval is required for gifts or other transactions not involving
consideration, for a merger to which the corporation is a party or certain
other transactions described in Chapter 7B. The bylaws of the Company
currently contain a provision pursuant to which the Company has opted not to be
subject to Chapter 7B, but the board of directors may, in its sole discretion,
elect to become subject to Chapter 7B by amending such bylaws.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Preferred Stock to which any Prospectus Supplement may relate. Certain
terms of any series of Preferred Stock offered by any Prospectus Supplement
will be described in the Prospectus Supplement relating thereto. If so
indicated in the Prospectus Supplement, the terms of any series may differ from
the terms set forth below. The description of certain provisions of the
Preferred Stock does not purport to be complete and is subject to and qualified
in its entirety by reference to the provisions of the Company's Articles, and
the Certificate of Designation (the "Certificate of Designation") relating to
each particular series of Preferred Stock which will be filed or incorporated
by reference, as the case may be, as an exhibit to the Registration Statement
of which this Prospectus is a part at or prior to the time of the issuance of
such Preferred Stock.
GENERAL
Under the Articles, the board of directors of the Company is authorized,
without further stockholder action, to provide for the issuance of up to
10,000,000 shares of Preferred Stock. As of October 25, 1995, 654,815 shares
of Series C convertible preferred stock were outstanding. The board of
directors of the Company may from time to time authorize the issuance of shares
of Preferred Stock in series, and each such series shall have such dividend and
liquidation preferences, redemption prices, conversion rights, and other terms
and provisions as may be contained in the resolutions of the board of directors
of the Company providing for their issuance. The shares of any series of
Preferred Stock will be, when issued, fully paid and non-assessable and holders
thereof will have no preemptive rights in connection therewith.
RANK
All series of Preferred Stock rank on a parity with each other and rank
senior to Common Stock with respect to payment of dividends and distributions
of assets upon liquidation.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the board of directors of the Company out of funds
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
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may be fixed or variable or both. Dividends will be payable to holders of
record of Preferred Stock as they appear on the books of the Company (or, if
applicable, the records of the Depositary referred to below under "Description
of Depositary Shares") on such record dates as shall be fixed by the board of
directors. Dividends on any series of Preferred Stock will be cumulative.
Accumulations of dividends will not bear interest.
No full dividends may be declared or paid on funds set apart for the
payment of dividends on any series of Preferred Stock unless dividends shall
have been paid or set apart for such payment on the Preferred Stock of all
series. If full dividends are not so paid, all series of Preferred Stock shall
share ratably in the payment of dividends.
CONVERSION AND EXCHANGE
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
another series of Preferred Stock or Common Stock or exchangeable for another
series of Preferred Stock, Common Stock or Debt Securities of the Company. The
Common Stock of the Company is described under "Description of Common Stock."
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Company or the holder thereof and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series. The board of directors of the Company shall not create a sinking fund
for the redemption or purchase of shares of any series of Preferred Stock
unless provision for a sinking fund at least as beneficial to all issued and
outstanding shares of Preferred Stock shall either then exist or be at the same
time created.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the board of directors of the
Company, or by any other method determined to be equitable by the board of
directors.
On and after a redemption date, unless the Company defaults in the payment
of the redemption price, dividends will cease to accrue on shares of Preferred
Stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the Company, holders of each series of Preferred Stock will be entitled to
receive out of assets of the Company available for distribution to
shareholders, before any distribution is made on any Common Stock,
distributions upon liquidation in the amount set forth in the Certificate of
Designation or the Prospectus Supplement, as applicable, relating to such
series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the amounts payable with respect to the Preferred
Stock of any series are not paid in full, the holders of the Preferred Stock of
such series and all other series of Preferred Stock will share ratably in any
such distribution of assets of the Company in proportion to the full
liquidation preferences to which each is entitled. After payment of the full
amount of the liquidation preference to which they are entitled, the holders of
Preferred Stock will not be entitled to any further participation in any
distribution of assets of the Company.
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VOTING RIGHTS
At every meeting of stockholders, the holders of Preferred Stock shall
have the right with the holders of Common Stock, voting as a single class, to
vote in the election of directors and upon each other matter coming before any
meeting of the stockholders on the basis of one vote for each share of
Preferred Stock or Common Stock held. If at the time of any meeting of
shareholders, dividends on all series of Preferred Stock then outstanding are
in arrears in an aggregate amount equal to six quarterly dividends, then the
shares of all series of Preferred Stock then outstanding, voting separately as
a class, will have the right at each meeting of stockholders thereafter held to
elect two of the total directors to be selected at such meeting until all
arrearages of dividends accumulated on all series of Preferred Stock for all
preceding dividend periods shall have been paid or declared or set apart for
payment. While holders of Preferred Stock voting as a class are entitled to
elect two directors they are not entitled to vote on the election of any other
directors. Whenever all arrearages of dividends have been paid or declared and
set apart for payment, the tenure of all directors so elected by them will
automatically terminate.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be described in
the applicable Prospectus Supplement.
PREFERRED STOCK OUTSTANDING
As of October 25, 1995, the Company had issued and outstanding 654,815
shares of Series C Preferred Stock. The Series C Preferred Stock bears a
dividend of $2.875 per share per quarter, payable when and as declared by the
board of directors, on March 15, June 15, September 15 and December 15 of each
year. Upon the voluntary or involuntary dissolution, liquidation or winding up
of the Company, the holders of Series C Preferred Stock will be entitled to
receive a liquidation preference of $200 per share.
Each share of Series C Preferred Stock is convertible by holders at any
time into 6.49 shares of Common Stock, subject to adjustment in certain events,
and is redeemable for Common Stock by the Company after November 1, 1999 at a
redemption rate based on the then-current market price of the Common Stock. In
addition, the holders have the right to compel the Company to call for
redemption into Common Stock at a redemption rate based on the then-current
market price of the Common Stock, up to 25% of outstanding Series C Preferred
Stock shares between the date of issuance and December 15, 1995, up to 50% of
outstanding Series C Preferred Stock shares between December 16, 1995 and
November 1, 1997 and up to all outstanding Series C Preferred Stock shares
after November 1, 1997.
So long as any shares of Series C convertible preferred stock are
outstanding, the preferences and privileges of such shares shall not be altered
or changed in any material respect prejudicial to the holders thereof without
the consent of 66 2/3% of the record holders of the Series C convertible
preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement
and Depositary Receipt relating to the Preferred Stock, which will be filed or
incorporated by reference, as the case may be, as exhibits to the Registration
Statement of which this Prospectus is a part.
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GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In such event,
the Company will issue 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 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 a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $60,000,000 (the "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, conversion
and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the applicable Prospectus
Supplement.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Company or any holder of deposited Preferred
Stock, execute and deliver temporary Depositary Receipts which are
substantially identical to, and entitle the holders thereof to all the rights
pertaining to, the definitive Depositary Receipts. Depositary Receipts will be
prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited 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.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Company, sell such property
and distribute the net proceeds from such sale to such holders.
REDEMPTION OF STOCK
If a series of Preferred Stock represented by Depositary Shares is to be
redeemed, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary Shares will
be redeemed by the Depositary at a price per Depositary Share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of Preferred Stock so redeemed. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same 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 the Depositary by lot
or pro rata or by any other equitable method as may be determined by the
Depositary.
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WITHDRAWAL OF STOCK
Any holder of Depositary Shares may, upon surrender of the Depositary
Receipts at the corporate trust office of the Depositary (unless the related
Depositary Shares have previously been called for redemption), receive the
number of whole shares of the related series of Preferred Stock and any money
or other property represented by such Depositary Receipts. Holders of
Depositary Shares making such withdrawals will be entitled to receive whole
shares of Preferred Stock on the basis set forth in the related Prospectus
Supplement for such series of Preferred Stock, but holders of such whole shares
of Preferred Stock will not thereafter be entitled to deposit such Preferred
Stock under the Deposit Agreement or to receive Depositary Receipts therefor.
If the Depositary Shares surrendered by the holder in connection with such
withdrawal exceed the number of Depositary Shares that represent the number of
whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series
of deposited Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such series of 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 relevant series of Preferred Stock) will be
entitled to instruct the 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 Depositary will endeavor, insofar as practicable, to
vote the amount of such series of Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable actions that may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The 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.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
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 Depositary. However, any amendment which materially
and adversely alters the rights of the holders of the Depositary Shares
representing Preferred Stock of any series will not be effective unless such
amendment has been approved by the holders of at least the amount of the
Depositary Shares then outstanding representing the minimum amount of Preferred
Stock of such series necessary to approve any amendment that would materially
and adversely affect the rights of the holders of the Preferred Stock of such
series. Every holder of an outstanding Depositary Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Depositary Receipt, or by reason of the acquisition
thereof, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. The Deposit Agreement automatically terminates
if (i) all outstanding Depositary Shares have been redeemed; or (ii) each share
of Preferred Stock has been converted into other Preferred Stock or Common
Stock or has been exchanged for Debt Securities; or (iii) 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 Shares.
CHARGES OF DEPOSITARY
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 all charges of the Depositary in connection with the initial deposit
of the relevant series of Preferred Stock and any redemption of such Preferred
Stock.
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<PAGE> 24
Holders of Depositary Receipts will pay other transfer and other taxes and
governmental charges and such other charges or expenses as are expressly
provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its intent to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
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 $60,000,000.
MISCELLANEOUS
The Depositary will forward all reports and communications from the
Company which are delivered to the Depositary and which the Company is required
to furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares,
Depositary Receipts or shares of Preferred Stock unless satisfactory indemnity
is furnished. They may rely upon written advice of counsel or accountants, or
upon information provided by holders of Depositary Receipts or other persons
believed to be competent and on documents believed to be genuine.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), Preferred Stock, including Preferred Stock
represented by Depositary Shares ("Preferred Stock Warrants"), Common Stock
("Common Stock Warrants"), or any combination thereof. Warrants may be issued
independently or together with any Securities and may be attached to or
separate from such Securities. The Warrants are to be issued under warrant
agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as warrant agent (the "Warrant Agent"), all as
shall be set forth in the Prospectus Supplement relating to Warrants being
offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the certificates representing such Debt Warrants, including the following:
(1) the title of such Debt Warrants; (2) the aggregate number of such Debt
Warrants; (3) the price or prices at which such Debt Warrants will be issued;
(4) the currency or currencies, including composite currencies or currency
units, in which the price of such Debt Warrants may be payable; (5) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants, and the procedures and
conditions relating to the exercise of such Debt Warrants; (6) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such Debt
Security; (7) the currency or currencies, including composite currencies or
currency units, in which the principal of or any premium or interest on the
Debt Securities purchasable upon exercise of such Debt Warrants will be
payable; (8) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable; (9) the principal
amount of Debt
-24-
<PAGE> 25
Securities purchasable upon exercise of each Debt Warrant, and the price at
which and the currency or currencies, including composite currencies or
currency units, in which such principal amount of Debt Securities may be
purchased upon such exercise; (10) the date on which the right to exercise such
Debt Warrants will commence, and the date on which such right will expire; (11)
the maximum or minimum number of such Debt Warrants which may be exercised at
any time; (12) a discussion of any material federal income tax considerations;
and (13) any other terms of such Debt Warrants and terms, procedures and
limitations relating to the exercise of such Debt Warrants.
Certificates representing Debt Warrants will be exchangeable for new
certificates representing Debt Warrants of different denominations, and Debt
Warrants may be exercised at the corporate trust office of the Warrant Agent or
any other office indicated in the Prospectus Supplement. Prior to the exercise
of their Debt Warrants, holders of Debt Warrants will not have any of the
rights as holders of the Debt Securities purchasable upon such exercise and
will not be entitled to payment of principal of or any premium or interest on
the Debt Securities purchasable upon such exercise.
PREFERRED STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of Preferred
Stock Warrants offered thereby, the Warrant Agreement relating to such
Preferred Stock Warrants and the certificates representing such Preferred Stock
Warrants, including the following: (1) the title of such Preferred Stock
Warrants; (2) the aggregate number of such Preferred Stock Warrants; (3) the
price or prices at which such Preferred Stock Warrants will be issued; (4) the
currency or currencies, including composite currencies or currency units, in
which the price of such Preferred Stock Warrants may be payable; (5) the
designation, number of shares and terms (including, among others, dividend,
liquidation, redemption and voting rights) of the Preferred Stock (including
Preferred Stock represented by Depositary Shares) purchasable upon exercise of
such Preferred Stock Warrants, and the procedures and conditions relating to
the exercise of such Preferred Stock Warrants; (6) the designation and terms of
any related Securities of the Company with which such Warrants are issued, and
the number of such Preferred Stock Warrants issued with each such Security; (7)
the date, if any, on and after which such Preferred Stock Warrants and the
related Securities will be separately transferable; (8) the maximum or minimum
number of Preferred Stock Warrants which may be exercised at any time; (9) if
applicable, a discussion of any material federal income tax considerations; and
(10) any other terms of such Preferred Stock Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Preferred Stock Warrants.
Certificates representing Preferred Stock Warrants will be exchangeable
for new certificates representing Preferred Stock Warrants of different
denominations, and Preferred Stock Warrants may be exercised at the corporate
trust office of the Warrant Agent or any office indicated in the Prospectus
Supplement. Prior to the exercise of their Preferred Stock Warrants, holders
of such Preferred Stock Warrants will not have any of the rights as holders of
the Preferred Stock purchasable upon such exercise and will not be entitled to
any dividend payments, liquidation premiums or voting rights of the Preferred
Stock (including Preferred Stock represented by Depositary Shares) purchasable
upon such exercise.
COMMON STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of any Common
Stock Warrants, the Warrant Agreement relating to such Common Stock Warrants
and the certificates representing such Common Stock Warrants in respect of
which this Prospectus is being delivered which may include: (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 currency or currencies, including composite currencies or
currency units, in which the price of such Common Stock Warrants may be
payable; (5) if applicable, the designation and terms of any related Security
with which such Common Stock Warrants are issued, and the number of such Common
Stock Warrants issued with each such related Security; (6) if
-25-
<PAGE> 26
applicable, the date on and after which such Common Stock Warrants and the
related Security will be separately transferable; (7) the date on which the
right to exercise such Common Stock Warrants will commence, and the date on
which such right will expire; (8) the maximum or minimum number of such Common
Stock Warrants which may be exercised at any time; (9) if applicable, a
discussion of any material federal income tax considerations; and (10) any
other terms of such Common Stock Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Common Stock
Warrants.
Certificates representing Common Stock Warrants will be exchangeable for
new certificates representing Common Stock Warrants of different denominations,
and Common Stock Warrants may be exercised at the corporate trust office of the
Warrant Agent or any other office indicated in the Prospectus Supplement.
Prior to the exercise of their Common Stock Warrants, holders of Common Stock
Warrants will not have any of the rights as holders of Common Stock purchasable
upon such exercise and will not be entitled to dividend payments, if any, or
voting rights of the Common Stock purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such principal
amount of Debt Securities or number of shares of Preferred Stock or Common
Stock at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the Prospectus Supplement relating to the
Warrants offered thereby. Warrants may be exercised as set forth in the
Prospectus Supplement relating to the Warrants offered thereby. Upon receipt
of payment and the certificate representing the Warrants properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement, the Company will, as soon as
practicable, forward the Securities purchasable upon such exercise. If less
than all of the Warrants represented by such certificate are exercised, a new
certificate will be issued for the remaining Warrants. Warrants may be
exercised at any time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants offered thereby.
After the close of business on the expiration date, unexercised Warrants will
become void.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities (including Debt Securities that are exchangeable for Bearer
Securities and Debt Securities in permanent global form that are either Bearer
Securities or exchangeable for Bearer Securities) may not be offered, sold,
resold or delivered in connection with their original issuance in the United
States or to United States persons (each as defined below) except as otherwise
permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D) including offers
and sales to offices located outside the United States of United States
financial institutions (as defined in Treasury Regulation Section
1.165-12(c)(1)(v)) which agree in writing to comply with the requirements of
Section 165(j)(3)(A),(B) or (C) of the Code, as defined below, and the
regulations thereunder, and any underwriters, agents and dealers participating
in the offering of Debt Securities must agree in writing that they will not
offer, sell or resell any Bearer Securities to persons within the United States
or to United States persons (except as described above) nor deliver Bearer
Securities within the United States. In addition, any such underwriters,
agents and dealers must represent in writing that they have in effect, in
connection with the offer and sale of the Debt Securities, procedures
reasonably designed to ensure that their employees or agents who are directly
engaged in selling the Debt Securities are aware that Bearer Securities cannot
be offered or sold to a person who is within the United States or is a United
States person except as otherwise permitted by Treasury Regulation Section
1.163-5(c)(2)(i)(D). Furthermore, the owner of the obligation (or the financial
institution or clearing organization through which the owner holds the
obligation) must certify to the Company that the owner is not a United States
Person. Bearer Securities and any coupons attached hereto will bear the
following legend: "Any United States person who holds this obligation will be
subject to limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the United States
Internal Revenue Code." Purchasers of Bearer Securities may be affected by
certain limitations under United States tax laws.
-26-
<PAGE> 27
As used herein, "United States person" means (i) an individual who is, for
United States Federal income tax purposes, a citizen or resident of the United
States, (ii) a corporation, partnership or other entity created or organized in
or under the laws of the United States or of any political subdivision thereof,
or (iii) an estate or trust the income of which is subject to United States
Federal income taxation regardless of its source, and "United States" means the
United States of America (including the States and the District of Columbia),
its territories and its possessions.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters or dealers,
directly to other purchasers, or through agents. The Prospectus Supplement
with respect to the Securities will set forth the terms of the offering of the
Securities, including the name or names of any underwriters, dealers or agents,
the price of the offered Securities and the net proceeds to the Company from
such sale, any delayed delivery arrangements, any underwriting discounts or
other items constituting underwriters' compensation, any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the Securities may be listed.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
price or at varying prices determined at the time of sale. The underwriter or
underwriters with respect to a particular underwritten offering of Securities
will be named in the Prospectus Supplement relating to such offering, and if an
underwriting syndicate is used, the managing underwriter or underwriters will
be set forth on the cover of such Prospectus Supplement. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters or
agents to purchase the Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all the Securities
if any are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If a dealer is utilized in the sale of any Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale. The
name of the dealer and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Securities may be sold directly by the Company to one or more
institutional purchasers, or through agents designated by the Company from time
to time, at a fixed price, or prices, which may be changed, or at varying
prices determined at time of sale. Any agent involved in the offer or sale of
the Securities will be named, and any commissions payable by the Company to
such agent will be set forth, in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Securities, underwriters or agents may
receive compensation from the Company or from purchasers or Securities for whom
they may act as agents in the form of discounts, concessions, or commissions.
Underwriters, agents, and dealers participating in the distribution of the
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of the
Securities by them may be deemed to be underwriting discounts or commissions
under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Securities from the Company at the public offering
price set forth in such Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions
-27-
<PAGE> 28
set forth in the Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Each underwriter, dealer and agent participating in the distribution of
any Debt Securities which are issuable in bearer form will agree that it will
not offer, sell or deliver, directly or indirectly, Debt Securities in bearer
form in the United States or to United States persons except as otherwise
permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D). See "Limitations
on Issuance of Bearer Securities."
Each underwriter, dealer and agent participating in the distribution of
any Securities will agree that (a) it will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which do not constitute an offer to the public in the United
Kingdom for the purposes of the Public Offers of Securities Regulations 1995,
(b) it will comply with all applicable provisions of the Financial Services Act
1986 of Great Britain with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom and (c) it will
only issue or pass on in the United Kingdom any document in connection with the
issue of the Securities to a person who is of a kind described in Article 8 of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) (No.
2) Order 1995 of Great Britain or is a person to whom the document may
otherwise lawfully be issued or passed on.
Each series of Securities will be a new issue with no established trading
market, other than the Common Stock which is listed on the New York Stock
Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange. Any
Common Stock sold pursuant to a Prospectus Supplement will be listed on the New
York Stock Exchange, the Chicago Stock Exchange and the Pacific Stock Exchange,
subject to official notice of issuance. Any underwriters to whom Securities
are sold by the Company for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Agents, dealers, and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that such agents, dealers, or underwriters may be
required to make with respect thereto. Underwriters, dealers, or agents and
their associates may be customers of, engage in transactions with and perform
services for, the Company in the ordinary course of business.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon for the
Company by Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Michigan, and
Skadden, Arps, Slate, Meagher & Flom, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended January 25,
1995, have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
accounting and auditing.
-28-
<PAGE> 29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be borne by the Company in
connection with the offerings described in this Registration Statement. All
such expenses other than the Securities and Exchange Commission registration
fee are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee. . . . . $344,827.59
Transfer Agents, Trustees and Depositary's
Fees and Expenses . . . . . . . . . . . . . . . . . . . 80,000.00
Printing and Engraving Fees and Expenses . . . . . . . . . . 100,000.00
Accounting Fees and Expenses . . . . . . . . . . . . . . . . 255,000.00
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . 25,000.00
Legal Fees . . . . . . . . . . . . . . . . . . . . . . . . . 450,000.00
Rating Agency Fees . . . . . . . . . . . . . . . . . . . . . 270,000.00
Miscellaneous (including Listing
Fees, if applicable). . . . . . . . . . . . . . . . . . 25,172.41
---------
Total $1,550,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's By-Laws and the Michigan Business Corporation Act permit
the Registrant's officers and directors to be indemnified under certain
circumstances for expenses and, in some instances, for judgments, fines or
amounts paid in settlement of civil, criminal, administrative and investigative
suits or proceedings, including those involving alleged violations of the
Securities Act of 1933 (the "Act"). In addition, the Registrant maintains
directors' and officers' liability insurance which, under certain
circumstances, would cover alleged violations of the Act. Insofar as
indemnification for liabilities arising under the Act may be permitted to
officers and directors pursuant to the foregoing provisions, the Registrant has
been informed 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. Therefore, in the event that a claim for such
indemnification is asserted by any officer or director the Registrant (except
insofar as such claim seeks reimbursement by the Registrant of expenses paid or
incurred by an officer or director in the successful defense of any action,
suit or proceeding ) will, unless the matter has theretofore been adjudicated
by precedent deemed by the Registrant to be controlling, submit to a court of
appropriate jurisdiction the question of whether or not indemnification by it
is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated herein by
reference.
II-1
<PAGE> 30
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
- ------ -----------------------
<S> <C>
1 Form of Underwriting Agreement. To be filed by amendment.
4(a) Form of Indenture for Senior Debt Securities between Registrant and Trustee, to be named.
4(b) Form of Indenture for Subordinated Debt Securities between Registrant and Trustee, to be named.
4(c) The form or forms of Securities with respect to each particular series of Securities registered hereunder will be filed
as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference.
5(a) Opinion of Dickinson, Wright, Moon, Van Dusen and Freeman.
5(b) Opinion of Skadden, Arps, Slate, Meagher & Flom.
12 Statement re: Computation of Ratios of Earnings to Fixed Charges and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
23(a) Consent of Price Waterhouse LLP, Independent Accountants.
23(b) Consent of Dickinson, Wright, Moon, Van Dusen and Freeman (included in Exhibit 5(a)).
23(c) Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5(b)).
25(a) Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Trustee for the Senior
Indenture. To be filed by amendment.
25(b) Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Trustee for the
Subordinated Indenture. To be filed by amendment.
</TABLE>
ITEM 17 UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (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;
notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; (iii) To include any material
information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the
registration statement, provided, however, that paragraphs (1)(i) and 1(ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
II-2
<PAGE> 31
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 herein, 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 that (i) 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 and (ii) 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
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
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 set forth in Item 15, 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
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.
II-3
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Troy and State of Michigan on
December 11, 1995.
KMART CORPORATION
By /s/ Floyd Hall
-----------------------------------------------
(Floyd Hall)
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities indicated on December 11, 1995.
<TABLE>
<CAPTION>
Signatures Title Signatures Title
---------- ----- ---------- -----
<S> <C> <C> <C>
/s/ Floyd Hall Chairman of the /s/ David B. Harper
- ------------------------------ Board, President ---------------------------- Director
(Floyd Hall) (Principal Executive (David B. Harper)
Officer) and Director
Executive Vice President,
/s/ Marvin P. Rich Strategic Planning, Finance /s/ F. James McDonald
- ------------------------------ and Administration ---------------------------- Director
(Marvin P. Rich) and Chief Financial Officer (F. James McDonald)
(Duly authorized officer,
Principal Financial and
Accounting Officer)
/s/ Lilyan H. Affinito /s/ J. Richard Munro
- ------------------------------ Director ---------------------------- Director
(Lilyan H. Affinito) (J. Richard Munro)
/s/ Joseph A. Califano, Jr. /s/ Donald S. Perkins
- ------------------------------ Director ---------------------------- Director
(Joseph A. Califano, Jr.) (Donald S. Perkins)
/s/ Richard G. Cline
- ------------------------------ Director ---------------------------- Director
(Richard G. Cline) (Lawrence Perlman)
/s/ Willie D. Davis /s/ Gloria M. Shatto
- ------------------------------ Director ---------------------------- Director
(Willie D. Davis) (Gloria M. Shatto)
/s/ Enrique C. Falla /s/ James O. Welch, Jr.
- ------------------------------ Director ---------------------------- Director
(Enrique C. Falla) (James O. Welch, Jr.)
/s/ Joseph P. Flannery
- ------------------------------ Director
(Joseph P. Flannery)
</TABLE>
II-4
<PAGE> 33
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
- ------- -----------------------
<S> <C>
1 Form of Underwriting Agreement. To be filed by amendment.
4(a) Form of Indenture of Senior Debt Securities between Registrant
and Trustee, to be named.
4(b) Form of Indenture for Subordinated Debt Securities between
Registrant and Trustee, to be named.
4(c) The form or forms of Securities with respect to each particular
series of Securities registered hereunder will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference.
5(a) Opinion of Dickinson, Wright, Moon, Van Dusen and Freeman.
5(b) Opinion of Skadden, Arps, Slate, Meagher & Flom.
12 Statement re: Computation of Ratios of Earnings to Fixed Charges
and of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
23(a) Consent of Price Waterhouse LLP, Independent Accountants.
23(b) Consent of Dickinson, Wright, Moon, Van Dusen and Freeman (included
in Exhibit 5(a)).
23(c) Consent of Skadden, Arps, Slate, Meagher & Flom (included in
Exhibit 5(b)).
25(a) Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of the Trustee for the Senior Indenture. To
be filed by amendment.
25(b) Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of the Trustee for the Subordinated
Indenture. To be filed by amendment.
</TABLE>
<PAGE> 1
EXHIBIT 4(a)
KMART CORPORATION
TO
__________________________
Trustee
Indenture
Dated as of _________________
Senior Debt Securities
<PAGE> 2
TABLE OF CONTENTS(1)
RECITALS OF THE COMPANY
ARTICLE I
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.4 Acts of Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.6 Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.7 Language of Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.8 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.9 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.10 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.12 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.14 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.15 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.16 Immunity of Incorporators, Shareholders, Officers, Directors
and Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.3 Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4 Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.5 Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
____________________
(1) NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE> 3
ARTICLE III
<TABLE>
<CAPTION> PAGE
----
<S> <C> <C>
THE SECURITIES . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . .. . . . . . . 19
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 19
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 22
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 22
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 25
SECTION 3.5 Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 27
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons . . . . . . . . . . . . . . . . .. . . . . . . 30
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 31
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 33
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 33
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 34
SECTION 3.11 Electronic Security Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 34
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . 34
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 34
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 36
SECTION 4.3 Company's Option to Effect Defeasance or Covenant Defeasance. . . . . . . . . . . . . . . . . .. . . . . . . 36
SECTION 4.4 Discharge and Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 36
SECTION 4.5 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 37
SECTION 4.6 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 37
ARTICLE V
REMEDIES . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . 40
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 40
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 41
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . .. . . . . . . 42
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 43
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . .. . . . . . . 44
SECTION 5.6 Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 44
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 45
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 45
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 46
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 46
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 46
SECTION 5.12 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 46
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 47
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 47
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 48
</TABLE>
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<TABLE>
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ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.1 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.2 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.3 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.4 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.5 Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.6 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.7 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.10 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.11 Merger, Conversion Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.12 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.13 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.1 Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.2 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.1 Company May Consolidate, Etc. on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 8.2 Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.3 Opinion of Counsel to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.6 Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
iii
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<TABLE>
<S> <C> <C>
ARTICLE X
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.3 Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.6 Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.7 Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.1 Purposes for Which Meetings May be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.2 Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.3 Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.5 Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . 75
SECTION 13.6 Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . 76
</TABLE>
iv
<PAGE> 6
ARTICLE XIV
<TABLE>
<S> <C> <C>
CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 14.2 Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 14.3 No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 14.4 Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 14.5 Notice of Certain Corporate Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 14.6 Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.7 Payment of Certain Taxes upon Conversion . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.8 Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.9 Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . . . . 80
SECTION 14.10 Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 14.11 Repayment of Certain Funds upon Conversion . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
v
<PAGE> 7
INDENTURE, dated as of __________, 1996, between Kmart Corporation, a
corporation duly organized and existing under the laws of the State of Michigan
(herein called the "Company"), having its principal office at 3100 West Big
Beaver Road, Troy, Michigan 48084, and __________________, as Trustee (herein
called the "Trustee") .
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its secured or
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of
America at the date of such computation; and
<PAGE> 8
(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.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place, in connection with which the term is
used, or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 2.1 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 2.4, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
securities in global form for purposes of Sections 2.1 and 2.3 and Article III
of the Indenture.
"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 each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that
2
<PAGE> 9
Place of Payment or other location are authorized or obligated by law or
executive order to close.
"Cedel S.A." means Cedel Bank, Societe Anonyme, or its successor.
"Commission" means the United States Securities and Exchange Commission.
"Common Depository" has the meaning specified in Section 3.4.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors or
the President or any Vice Chairman or any Vice President and by the Treasurer
or the Secretary or any Assistant Treasurer or any Assistant Secretary of the
Company and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
[NEW YORK, NEW YORK] at which at any particular time its corporate trust
business shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 4.4.
"Depository" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Book-Entry Securities,
the clearing agency registered under the Securities Exchange Act of 1934, as
amended specified for that purpose as contemplated by Section 3.1.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
3
<PAGE> 10
"Euro-clear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Date" has the meaning specified in Section 3.4.
"Holder", when used with respect to any Security, means in the case of a
Registered Security, the Person in whose name the 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, means 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 3.1.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors or the President or any Vice Chairman or any Vice President
and by the Treasurer or the Secretary or any Assistant Treasurer or any
Assistant Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable 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 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any
coupons appertaining thereto; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however,
that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of Holders of
Securities (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.2, (ii) the principal amount of a
Security denominated in a foreign currency or currencies shall be
the U.S. dollar equivalent, determined on the date of original
issuance of such Security, of the principal amount (or, in the case
of an Original Issue Discount Security, the U.S. dollar equivalent
on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor; and
(iv) Securities as to which Defeasance has been effected pursuant
to Section 4.4.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of and any premium and interest on any Securities or any Coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
10.2, the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established pursuant
to Section 2.1 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 3.1., whether or not such day is a
Business Day.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
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"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or 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.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States 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 (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any such U.S. Government Obligations or a specific
payment of principal of or interest on any such U.S. Government Obligations
held by such custodian for the account of the holder of such 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
deposi-
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tory receipt provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of principal of or interest
on the U.S. Government Obligations evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with respect
to compliance with a condition or covenant provided for in this Indenture,
except for certificates provided for in Section 10.7, shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
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In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article XIII, 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
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent or proxy, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
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proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) With respect to the Securities of any Series, upon receipt by the
Trustee of (i) any written notice directing the time, method or place of
conducting any proceeding or exercising any trust or power pursuant to Section
5.1 with respect to Securities of such series or (ii) any written demand,
request or notice with respect to any matter on which the Holders of Securities
of such series are entitled to act under this Indenture, in each case from
Holders of less than, or proxies representing less than, the requisite
principal amount of Outstanding Securities or such series entitled to give such
demand, request or notice, the Trustee shall establish a record date for
determining Holders of Outstanding Securities of such series entitled to join
in such demand, request or notice, which record date shall be the close of
business on the day the Trustee received such demand, request or notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such demand, request or notice whether or
not such Holders remain Holders after such record date; provided, however, that
unless the Holders of the requisite principal amount of Outstanding Securities
of such series shall have joined in such demand, request or notice prior to the
day which is the ninetieth day after such record date, such demand, request or
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, (i) after the expiration of such 90-day
period, a new demand, request or notice identical to a demand, request or
notice which has been canceled pursuant to the proviso to the preceding
sentence or (ii) during any such 90-day period, a new demand, request or notice
which has been canceled pursuant to the proviso to the preceding sentence or
(iii) during any such 90-day period, a new demand, request or notice contrary
to or different from such demand, request or notice, in either of which events
a new record date shall be established pursuant to the provisions of this
clause.
(g) The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand,
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authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of Securities of
such series. With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
give or take the relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for which a
record date is set pursuant to this paragraph, the Company may, at its option,
set an expiration date after which no such action purported to be given or
taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any expiration
date, any action identical to, or, at any time, contrary to or different from,
any action given or taken, or purported to have been given or taken, hereunder
by a Holder on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph. Notwithstanding the
foregoing or the Trust Indenture Act, the Company shall not set a record date
for, and the provisions of this paragraph shall not apply with respect to, any
action to be given or taken by Holders pursuant to Section 5.1, 5.2 or 5.12.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: ____________, or
(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, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the
Company.
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SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event:
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of
New York, The City of London and in such other city or cities as
may be specified in such Securities on a Business Day at least
twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for
the giving of such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. 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 mailed to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered Securities
given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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SECTION 1.7 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
SECTION 1.8 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision
(an "incorporated provision") included in this Indenture by operation of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties
of incorporated provision shall control.
SECTION 1.9 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11 Separability Clause.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12 Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13 Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflicts of laws.
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SECTION 1.14 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date, Maturity or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities or coupons other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such succeeding Business Day.
SECTION 1.15 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due on the Securities of any series
from the currency in which such sum is payable in accordance with the terms of
such Securities (the "Required Currency") into a currency in which a judgment
will be rendered (the "Judgment Currency"), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is rendered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
SECTION 1.16 Immunity of Incorporators, Shareholders, Officers, Directors
and Employees.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer,
director or employee, as such, past, present or
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<PAGE> 22
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers, directors or employees, as such, of the
Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations or agreements contained in this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, shareholder,
officer, director or employee, as such, because of the creation of the
indebtedness hereby authorized, or under of by reason of the obligations or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
All payments of interest and other amounts, if any, to be made by the
Trustee hereunder shall be made only from the money deposited with the Trustee
and only to the extent that the Trustee shall have sufficient income or
proceeds to make such payments in accordance with the terms of this Indenture,
and each holder hereof, by its acceptance of a Security, agrees that it will
look solely to the income and proceeds deposited with the Trustee to the extent
available for distribution to the holder hereof as provided and that the
Trustee is not personally liable in any manner to the holder hereof for any
amounts payable or any liability under this Indenture or any Security.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form
(including temporary or permanent global form) as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If temporary Securities of any series are issued
in global form as permitted by Section 3.4, the form thereof shall be
established as provided in the preceding sentence. If the forms of Securities
or coupons of any
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series (or any such temporary global Security) are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.3
for the authentication and delivery of such Securities (or any such temporary
global Security) or coupons.
Unless otherwise specified as contemplated by Section 3.1, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificates 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.
[TRUSTEE]
As Trustee
By
Authorized Signatory
SECTION 2.3 Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 3.1, then, notwithstanding clause (12) of Section 3.1
and the provisions of Section 3.2, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or
Section 3.4. Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in 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 3.3 or 3.4 has been, or simultaneously
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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 1.2 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 3.3 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 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global
Security or, in the case of a permanent global Security in bearer form, of
Euro-clear or Cedel S.A. which is provided to the Trustee by such Person.
SECTION 2.4 Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
SECTION 2.5 Form of Conversion Notice.
The Form of conversion notice for the conversion of Securities into
shares of Common Stock or other securities of the Company shall be in
substantially the form included with the applicable form of Securities as shall
be established pursuant to Section 2.1 hereinabove.
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ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 3.4,
3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant
to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 3.5;
(4) 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 3.4;
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(5) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, or the formula pursuant to which such rate
or rates shall be determined, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, and the Regular Record Date for any
interest payable on any Registered Securities on any Interest
Payment Date and the basis upon which interest shall be calculated
if other than that of a 360-day year consisting of twelve 30-day
months;
(7) the place or places where, subject to the provisions of
Sections 11.4 and 10.2, the principal of and any premium and
interest on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be
surrendered for conversion or exchange, notices and demands to or
upon the Company in respect of the Securities of the series and
this Indenture may be served and where notices to Holders of Bearer
Securities pursuant to Section 1.6 will be published;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part as shall be set forth
in an Officers' Certificate or supplemental indenture;
(10) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series, or particular Securities within
the series, pursuant to any sinking fund or analogous provisions
and the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities shall
be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(11) the terms of any right to convert or exchange Securities of
the series, either at the option of the Holder thereof or the
Company, into or for shares of Common Stock of the Company or other
securities or property, including without limitation the period or
periods within which and the price or prices (including adjustments
thereto) at which any Securities of the series shall be converted
or exchanged, in whole or in part;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof,
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and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the
denomination of $5,000;
(13) the currency or currencies, including composite currencies,
in which payment of the principal of and any premium and interest
on the Securities of the series shall be payable if other than the
currency of the United States of America;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the
Securities are stated to be payable, the currency or currencies in
which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall
be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(15) if the amount of payments of principal of and any premium or
interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(16) if other than the principal amount thereof, the portion of
the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
(17) the Person who shall be the Security Registrar, if other than
the Trustee;
(18) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any
transfer of such Book-Entry Security may be registered to, a Person
other than such Depository or its nominee, if other than as set
forth in Section 3.5;
(19) if the provisions of Section 4.4 or 4.5 are applicable to the
Securities of such series;
(20) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may
be specified;
(21) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
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(22) whether and under what conditions additional amounts will be
payable to Holders of Securities of the series pursuant to Section
10.4;
(23) the terms and conditions, if any, pursuant to which such
Securities are secured; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth in, or determined in the manner provided
in, the Officers' Certificate referred to above or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the
terms, or the manner of determining the terms, of the series.
SECTION 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be signed on behalf of the Company by both (a) its
Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or one of its Vice Presidents and (b) its
Treasurer or one of its Assistant Treasurers or its Secretary or one of its
Assistant Secretaries, under its corporate seal which may, but need not, be
attested. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of the
Treasurer of the Company.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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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 Coupons 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 a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Security
shall have furnished a certificate in the form specified in such Security as to
certain tax matters in respect of United States citizens, 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 global Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 3.4, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution and indenture supplement 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, maturity date,
date of issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any related
Coupons have been established in or pursuant to one or more Board Resolutions
as permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that such forms have been established in conformity with the
provisions of this Indenture;
(b) that such terms, or the manner of determining such terms, have
been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any Coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency,
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reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to
general equity principles.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue or such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication;
and each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.9 together with a written
statement (which need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities 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 or coupons may determine, as evidenced by their execution of such
Securities or coupons. In the case of any series issuable
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as Bearer Securities, such temporary Securities may be in global form. A
temporary Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 3.3.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 10.2 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and Cedel S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Cedel S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form or
in such form as shall be specified in such Security. 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
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thereof, as specified as contemplated by Section 3.1, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, 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 3.3.
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
Euro-clear or Cedel S.A., as the case may be, to request such exchange on his
behalf and delivers to Euro-clear or Cedel S.A., as the case may be, a
certificate in such form as shall be specified in such Security, dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euro-clear and Cedel S.A., the Trustee,
any Authenticating Agent appointed for such series of Securities and each
Paying Agent. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euro-clear or Cedel S.A. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by section 3.1, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to
the applicable Exchange Date shall be payable to Euroclear and Cedel S.A. on
such Interest Payment Date upon delivery by Euro-clear and Cedel S.A. to the
Trustee of a certificate or certificates in such form as shall be specified in
such Security, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euro-clear or Cedel S.A., as the case may be, a
certificate in such form as shall be specified in such Security. Any interest
so received by Euro-clear and Cedel S.A. and not paid as herein provided shall
be returned to the Trustee immediately prior to the expiration of two years
after such Interest Payment Date in order to be repaid to the Company in
accordance with Section 10.3.
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SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 10.2 a register (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon due surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 10.2 for such purpose in a Place of Payment for such
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 and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Registered Securities
may not be exchanged for Bearer Securities.
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
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee 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
Securities 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 10.2, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (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
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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 3.1, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 3.1, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary or Common
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of such series without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such permanent global Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by
Section 3.1, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no 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.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice
of redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, any Book-Entry Security shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and a transfer of a Book-Entry Security or any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company Order that such
Book-Entry Security shall be so exchangeable and the transfer thereof so
registerable or (iii) there shall have occurred and be continuing an Event of
Default, or an event which after notice or lapse of time would be an Event of
Default, with respect to the Securities of such series. Upon the occurrence in
respect of any Book-Entry Security of any series of any one or more of the
conditions specified in clauses (i), (ii) or (iii) or the preced-
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ing sentence or such other conditions as may be specified as contemplated by
Section 3.1 for such series, such Book-Entry Security may be exchanged for
Securities registered in the names of, and the transfer of such Book-Entry
Security may be registered to, such Persons (including Persons other than the
Depository with respect to such series and its nominees) as such Depository
shall direct. Notwithstanding any other provision of this Indenture, any
Security authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Book-Entry Security shall also be a Book-Entry
Security and shall bear the legend specified in Section 2.4 except for any
Security authenticated and delivered in exchange for, or upon registration of
transfer of, Book-Entry Security pursuant to the preceding sentence.
Notwithstanding anything in this Indenture or in the terms of a
Security to the contrary, the exchange of Bearer Securities for Registered
Securities will be subject to satisfaction of the provisions of the United
States federal income tax laws in effect at the time of such exchange. None of
the Company, the Trustee or any Authenticating Agent of the Company or the
Trustee (any of which, other than the Company, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any Bearer
Security for a Registered Security if as a result thereof and in the Company's
reasonable judgment, the Company would incur adverse consequences under then
applicable United States federal income tax laws.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security and such mutilated
Security or a Security with a mutilated coupon, if any, shall be cancelled by
the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall, subject
to the following paragraph, execute, and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
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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, pay such Security or coupon; provided,
however, that principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 10.2, be payable only at an
office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may
require 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 any coupons appertaining thereto,
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 any coupons appertaining thereto, or the destroyed, lost or stolen
coupon shall be at any time enforceable by anyone, and any such new Security
and coupons, if any, 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 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) and (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
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such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such series at
the address of such Holder as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the 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); and
(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 3.5, each
Security delivered under this Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Security which is converted into Common Stock of the
Company after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security whose Maturity is prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding
such conversion, and such interest (whether or not punctually paid or duly
provided for) 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 such
Regular Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Security which is converted, interest
whose Stated Maturity is after the date of conversion of such Security shall
not be payable.
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SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.5 and 3.7) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security shall 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 bearer of any Bearer Security and the Bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.9 Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Registered Securities and matured coupons so
delivered shall be promptly cancelled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be cancelled. All Bearer Securities and
unmatured coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities and
coupons held by the Trustee shall be disposed of as directed by a Company
Order, or in the absence of a Company Order, may be destroyed by the Trustee.
Notwithstanding the foregoing, with respect to any Book-Entry 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 a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of such Book-Entry Security.
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SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 Electronic Security Issuance.
The Securities may, pursuant to a Board Resolution and Officers'
Certificate complying with Section 3.1 hereof, be issued by means of an
electronic issuance system. Any such Security issuance instructions may specify
the name, address and taxpayer identification number of the Holder, the
principal amount and Maturity of the Security, the interest rate to be borne by
the Security and any other terms not inconsistent with such Board Resolution
and Officers' Certificate. Nothing in this Section 3.11 shall be construed as
prohibiting the Company from issuing Securities by any means not inconsistent
with the provisions of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive additional
amounts, as provided in Section 10.4), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either
(A) all Securities 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
3.5, (ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.6, (iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.6, and (iv) Securities
and coupons for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
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(B) all such Securities 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) 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 deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose, an
amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and any interest to the date of such deposit
(in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.5, the obligations of
the Trustee to any Authenticating Agent under Section 6.12 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive .
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 4.1 or 4.3 and all money received by the Trustee in respect of such
U.S. Government Obligations shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest for whose payment such money and U.S. Government
Obligations has been deposited with or received by the Trustee.
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SECTION 4.3 Company's Option to Effect Defeasance or Covenant Defeasance.
If applicable to a particular series of Securities, the Company may
elect, at its option at any time, to have Section 4.4 or Section 4.5 applied to
any such series of Securities or any Securities of such series, as the case may
be, designated pursuant to Section 3.1 as being defeasible pursuant to such
Section 4.4 or 4.5, in accordance with any applicable requirements provided
pursuant to Section 3.1 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 3.1 for such Securities.
SECTION 4.4 Discharge and Defeasance.
If this Section 4.4 is specified, as contemplated by Section 3.1, to be
applicable to Securities of any series, then notwithstanding Section 4.1 and
upon compliance with the applicable conditions set forth in 4.6: (1) the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of any such series ("Defeasance"); and (ii) the
provisions of this Indenture as it relates to such Outstanding Securities shall
no longer be in effect (except as to the rights of Holders of Securities to
receive, solely from the trust fund described in Section 4.6, payment of (x)
the principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Securities on the Stated Maturity of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest or upon optional redemption and/or (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of that series
on that day on which such payments are due and payable in accordance with the
terms of the Indenture and of such Securities, the Company's obligations with
respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2, 10.3, and 10.4
and the rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 6.7 hereof);
SECTION 4.5 Covenant Defeasance.
If this Section 4.5 is specified, as contemplated by Section 3.1, to be
applicable to any series of Securities or any Securities of such series, as the
case may be, (1) the Company shall be released from its obligations under
Sections 10.4 through 10.7, inclusive, and any covenants provided pursuant to
Section 3.1(21) or 9.1(2) for the benefit of the Holders of such Securities
that pursuant to the terms of such Securities are defeasible pursuant to this
Section 4.5 and (2) the occurrence of any event specified in Sections 5.1(4)
(with respect to any of Sections 10.3 through 10.7, inclusive, and any such
covenants provided pursuant to Section 3.1(21), 9.1(2), or 9.1(6) and 5.1(7)
(if pursuant to the terms of such Securities this Section 4.5 is applicable to
any such event specified in Section 5.1(7)) shall be deemed not to be or result
in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 4.6 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
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 specified
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Section (to the extent so specified in the case of Section 5.1(4) and 5.1(7)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 4.6 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
4.4 or Section 4.5 to any applicable series of Securities or any Securities of
such series, as the case may be.
(1) either
(A) with respect to all Outstanding Securities of such series
or such Securities of such Series, as the case may be, with
reference to this Section 4.6, the Company has deposited or
caused to be deposited with the Trustee irrevocably (but
subject to the provisions of Section 4.2 and the last
paragraph of Section 10.3), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities, (X) lawful
money of the United States in an amount, or (Y) U.S.
Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their
terms will provide not later than the opening of business on
the due dates of any payment referred to in clause (i) or (ii)
of this subparagraph (1)(A) lawful money of the United States
in an amount, or (Z) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (i) the
principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest on such
Securities the Stated Maturity of such principal or
installment of principal or interest or upon optional
redemption and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Securities on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 3.1, to be applicable to the Securities of such
series;
(2) the Company has paid or caused to be paid all other sums
payable with respect to such Securities;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
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(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of
Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit and no Event of
Default under Section 5.1(5) or Section 5.1(6) or event which
with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 5.1(5) or Section
5.1(6) shall have occurred and be continuing on the 91st day
after such date;
(5) in the event of an election to have Section 4.4 apply to
any series of Securities, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (a) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (b) since the date of
this Indenture there has been a change in applicable federal
income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
Holders of Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred;
(6) in the event of an election to have Section 4.5 apply to
any series of Securities, the Company shall have delivered to
the Trustee an Opinion of Counsel, to the effect that the
Holders of such Securities will not recognize gain or loss for
federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such
Securities and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would
be the case if such deposit and Covenant Defeasance were not
to occur;
(7) if the Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall
have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not
cause such Securities to be desisted; and
(8) 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
Defeasance or Covenant Defeasance with respect to such
Securities of any such series have been complied with and an
Opinion of Counsel to the effect that either (i) as a result
of such deposit and the related exercise of the Company's
option under this Article, registration is not required under
the Investment Company Act of 1940, as amended, by the
Company, the trust funds representing such deposit or the
Trustee or (ii) all necessary registrations under said Act
have been effected.
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Any deposits with the Trustee referred to in Section 4.6(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow/trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with
any mandatory sinking fund requirement, the applicable escrow trust agreement
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon Defeasance with respect to all the Securities of a series, the
terms and conditions of such Securities, including the terms and conditions
with respect thereto set forth in this Indenture, shall no longer be binding
upon, or applicable to, the Company; provided that the Company shall not be
discharged from any payment obligations in respect of Securities which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
4.6) of the Company under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 6.5,
and the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive with respect to such series of Securities.
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 U.S. Government Obligations held by it as provided in this Section 4.6
with respect to any Securities 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 the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
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(1) default in the payment of any interest upon or any
additional amounts payable in respect of any Security of that
series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series),
and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of
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) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law, or appointing a custodian, receiver, liquidation,
assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of their property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of
60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidation, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of their property, or the making by it of
an assignment for the benefit of creditors, or the admission
by it in writing of its inability
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to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3) or (4) (if
the Event of Default under clause (4) is with respect to less than all series
of Securities then Outstanding) of Section 5.1 above occurs and is continuing,
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding hereunder (each such series
voting as a separate class), by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable. If an Event of Default described in
clause (4) (if the Event of Default under clause (4) relates to all series of
Securities then Outstanding), (5) or (6) of Section 5.1 occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if any Securities are Original Issue Discount
Securities such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding and interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) then Outstanding shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series (or of all the Securities,
as the case may be) and the principal of any and all Securities of such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series, (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such
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payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and if any and all Events of Default under
the Indenture, other than the non-payment of the principal of Securities (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as
provided herein then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of such Series, each series
voting as a separate class (or of all the Securities, as the case may be,
voting as a single class), then Outstanding, by written notice to the Company
and to the Trustee, may waive all such defaults with respect to such series (or
with respect to all the Securities, as the case may be) and rescind and annul
such declaration and its consequence, but not such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if,
(1) default is made in the payment of any interest on any
Security of any series when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of that series and any coupons appertaining thereto,
to margin the whole amount then due and payable on such Securities of that
series and coupons for principal and any premium and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and on the premium, if any, and overdue interest, at the
rate or rates prescribed therefor in such Securities of that series and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
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If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any coupons appertaining thereto by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of
Securities and coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same,
and any custodian, receiver, assignee, trustee, liquidation, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities 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 of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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.
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SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities
and coupons in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable
on such Securities and coupons for principal and any premium
and interest, respectively.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless;
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series 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;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
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 any premium and
(subject to Section 3.7) interest on such Security, and any additional amounts
contemplated by Section 10.4 in respect of such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 5.9 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, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 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 3.6, 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
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assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11 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 of Securities or coupons 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 5.12 Control by Holders of Securities.
The Holders of 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, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any coupons appertaining thereto waive any past
default hereunder with respect to the Securities of such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or any interest on any Security of such series except as
provided in Section 5.2, or
(2) in respect of a covenant or provision hereof which under
Article IX 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 impair any right consequent thereon.
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SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
or coupon 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of or any premium or interest on any Security
or the payment of any coupon on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or
after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order or as otherwise expressly provided herein and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders 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;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
SECTION 6.2 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
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Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.3 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Section 6.8 and 6.10, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.4 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.5 Compensation and Reimbursement..
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from
time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee or any predecessor Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder.
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SECTION 6.6 Resignation and Removal; Appointment of Successor.
(a) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.7 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(b) 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.
(c) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act 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 6.9
and Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a
Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 5.14 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.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.7. 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
Outstanding Securi-
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ties of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.7,
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 of that series and
accepted appointment in the manner required by Section 6.7, 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 the Securities of such series.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided in Section 1.6. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.7 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (l)
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
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such supplemental indenture shall constitute such Trustees as 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 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such 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 hereunder specified in this
Article.
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SECTION 6.10 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.11 Merger, Conversion Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.12 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent,
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shall continue to be an Authenticating Agent provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall promptly give notice
of such appointment to all Holders of Securities pursuant to Section 1.6. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.5.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[Trustee]
As Trustee
By
Authenticating Agent
By
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable
of authenticating Securities upon original issu-
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ance located in a Place of Payment where the Company wishes to have Securities
of such series authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need not comply with Section
1.2 and need not be accompanied by an Opinion of Counsel), shall appoint in
accordance with this Section an Authenticating Agent (which if so requested by
the Company, shall be such Affiliate of the Company) having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
SECTION 6.13. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 5.1(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 312(a) of
the Trust Indenture Act, (ii) received by the Trustee in its capacity as
Security Registrar and (iii) filed with it within the two preceding years
pursuant to Section 313(c)(2) of the Trust Indenture Act. The Trustee may (i)
destroy any list furnished to it as provided in Section 312(a) of the Trust
Indenture Act upon receipt of a new list so furnished, (ii) destroy any
information received by it as Paying Agent (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than March 20 or September 20 of
each year, a list containing the names and addresses of the Holders of
Securities obtained from such information since the delivery of the next
previous list, if any, (iii) destroy any list delivered to itself as Trustee
which was compiled from information received by it as Paying Agent (if so
acting) hereunder upon the receipt of a new list so delivered and (iv) destroy
not earlier than two years after filing, any information filed with it pursuant
to Section 313(c)(2) of the Trust Indenture Act. For purposes of Section
312(a) of the Trust Indenture Act, the term "stated intervals" shall mean
January 15 and July 15.
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant
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has owned a Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities with respect to their rights under
this Indenture or under the Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.1(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 7.1(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities whose name and address appears in
the information preserved at the time by the Trustee in accordance with Section
7.1(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) 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 agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 7.1(b), regardless of the
source from which such information was derived and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 7.1(b).
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SECTION 7.2 Reports by Trustee.
The Trustee shall in each year transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto and
as of a date at least one year after the date of original issuance of the
Securities hereunder, and each anniversary thereafter, such report, if so
required, to be transmitted within 60 days of each such anniversary date.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange or
market center.
SECTION 7.3. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the 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
required to be filed with respect to compliance by the Company with
the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Company May Consolidate, Etc. on Certain Terms.
The Company shall not merge or consolidate with any other corporation
or sell or convey all or substantially all of its assets to any Person, unless
(i) either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized under
the laws of the United States of America or any State thereof and shall
expressly assume the due and punctual payment of the principal of and interest
on all 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 or observed by the Company, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Company or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 8.2 Successor Corporation Substituted.
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the Company
prior to such succession 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 corporation 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 corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of 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
or 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 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.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Company or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
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SECTION 8.3 Opinion of Counsel to Trustee.
The Trustee may receive an Opinion of Counsel, prepared in accordance
with Section 1.2, as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are
expressly being included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registerable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
related coupons in any material respect; or
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(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
or
(6) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 2.1
and 3.1; or
(7) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.7(b); or
(8) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article XIV,
including providing for the conversion of the Securities into
any security or property (other than the Common Stock of the
Company); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
that such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series 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 any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay additional amounts
pursuant to Section 10.4 (except as contemplated by Section
8.1 and permitted by Section 9.1(1)), or reduce the amount of
the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of
the Matu-
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rity thereof pursuant to Section 5.2 or change the coin or
currency in which any Security or any premium or interest
thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), 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 of
certain defaults hereunder and their consequences provided for
in this Indenture, or reduce the requirements of Section 13.4
for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified
in Section 10.2, or
(4) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the
references to "the Trustee" and concomitant changes in this
Section or the deletion of this proviso, in accordance with
the requirements of Sections 6.7(b) and 9.1(8), or
(5) make any change that adversely affects the right to
convert any Security as provided in Article XIV or pursuant to
Section 3.1 (except as permitted by Section 9.1) or decrease
the conversion rate or increase the conversion price of any
such Security, or
(6) if the Securities are secured, change the terms and
conditions pursuant to which the Securities are secured in a
manner adverse to the Holders of the secured Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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SECTION 9.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act of 1939, as amended, in
effect on such date.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.1 with respect to
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any series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender outside the
United States of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 10.2 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer, exchange, or conversion and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for conversion or exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of that series pursuant
to Section 10.4); provided, however, that if the Securities of that series are
listed on The Stock Exchange of the United Kingdom and the Republic of Ireland,
the Luxembourg 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 London, Luxembourg
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 a Place of Payment
for that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for conversion or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt notice to the Trustee and to the Holders as provided in Sections
1.5 and 1.6, respectively, of the location and any change in the location, of
any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency in respect of any series of Securities or
shall fail to furnish the Trustee with the address thereof, such presentations
and surrenders of Securities of that series may be made and notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 10.4) at the office of the
Trustee for such series located outside the
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United States, and the Company hereby appoints the same as its agent to receive
such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States; provided, however, that if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
10.4) shall be made at the office of the Company's Paying Agent in The City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the
making of any payment of principal of and any premium or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
or any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money and all
liability of the Company as trustee thereof shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, 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 10.4 Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include
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mention of the payment of additional amounts provided for in this Section to
the extent that, in such context additional amounts are, were or would be
payable in respect thereof pursuant to the provisions of this Section and
express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's 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 United States Aliens without withholding for or on account of
any tax assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or willful misconduct on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such 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 that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.6 Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
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SECTION 10.7 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by its principal executive officer, principal financial
officer or principal accounting officer stating whether or not to the best
knowledge of the signer thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 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 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In the case of any redemption, at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), 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 (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series and of like tenor 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 and of like tenor 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 Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. If so specified
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in the Securities of a series, partial redemptions must be in an amount not
less than $1,000,000 principal amount of Securities.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities (or
portions thereof) which have been converted during a selection of Securities to
be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection. In any case where more than one Security is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Security.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed, and a statement to the effect that
on or after the Redemption Date upon surrender of such
Security a new Security in the principal amount equal to the
unredeemed portion will be issued;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue
on and after said date;
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(5) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining
thereto, if any maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) if applicable, the conversion rate or price, the date on
which the right to convert the Securities to be redeemed will
terminate and the place or places where such Securities may be
surrendered for conversion.
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
If any Security called for redemption is converted into Common Stock
of the Company, any money deposited with the Trustee or with any Paying Agent
or so segregated and held in trust for the redemption of such Security shall
(subject to any right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall on the Redemption Date become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the
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Redemption Price together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 10.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of coupons for such interest;
and provided, further, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest on Registered Securities whose Stated
Maturity is 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 3.7.
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 10.2) and unless otherwise specified as contemplated by
Section 3.1 only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series and of like tenor of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a 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) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities, as provided for
by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 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
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Section 11.3 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.4.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 13.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 13.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.6, not less than
21 nor more than 180 days prior to the date fixed for the meeting (or, in the
case of a meeting of Holders with respect to Securities of a series all or part
of which are represented by a Book-Entry Security, not less than 20 nor more
than 40 days).
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 25% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 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.
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SECTION 13.3 Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with respect to the
Securities of a series all or part of which are represented by a Book-Entry
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to vote at such meeting, which
record date shall be the close of business on the day the notice of the meeting
of Holders is given in accordance with Section 13.2. The Holders on such record
date, and their designated proxies, and only such Persons, shall be entitled to
vote at any meeting of Holders. To be entitled to vote at any meeting of
Holders a Person shall (a) be a Holder of one or more Securities or (b) be a
Person appointed by an instrument in writing as proxy by a Holder of one or
more Securities; provided, however, that in the case of any meeting of Holders
with respect to the Securities of a series all or part of which are represented
by a Book-Entry Security, only Holders, or their designated proxies, of record
on the record date established pursuant to Section 13.3 hereof shall be
entitled to vote at such meeting. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 13.4 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; 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 a specified
percentage in aggregate principal amount of Outstanding Securities of a series
that is less or greater than a majority in principal amount of the Outstanding
Securities of a series, then, with respect to such action (and only such
action) the Persons entitled to vote such lesser or greater percentage in
principal amount of the Outstanding Securities of such series shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 13.2 (a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an 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.
Notwithstanding the foregoing, no meeting of Holders with respect to Securities
of any Series which is represented in whole or in part by a Book-Entry
Security, shall be adjourned to a date more than 90 days after the record date
for such meeting unless the Trustee shall send out a new notice of
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meeting and establish, in accordance with Section 13.3, a new record date for
Holders entitled to vote at such meeting.
Except as limited by the proviso to Section 9.2, 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 9.2 any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a specified percentage in aggregate
principal amount of Outstanding Securities of a series that is less or greater
than a majority in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly convened and at which
a quorum is present as aforesaid only 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.
SECTION 13.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.4 and the appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the 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 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 13.2(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
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(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $ 1,000 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 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 13.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.2 and, if
applicable, Section 13.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 Applicability of Article.
The provisions of this Article shall be applicable to the Securities
of any series which are convertible into shares of Common Stock of the Company,
and the issuance of such shares of Common Stock upon the conversion of such
Securities, except as otherwise specified as contemplated by Section 3.1 for
the Securities of such series. The terms and provisions applicable to the
conversion of Securities of any series into securities of the Company (other
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than Common Stock) shall, if applicable, be set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of such series in accordance with Section 3.1.
SECTION 14.2 Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of a Security
of a series with such a privilege shall surrender such Security to the Company
at the office or agency maintained for that purpose pursuant to Section 10.2,
accompanied by written notice to the Company that the Holder elects to convert
such Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. Securities
surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the registered
Holder or its attorney duly authorized in writing; and Securities so
surrendered for conversion during the period from the close of business on any
Regular Record Date to the opening of business on the next succeeding Interest
Payment Date (excluding Securities or portions thereof called for redemption
during such period) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of Section 3.7 relating
to the payment of Defaulted Interest by the Company. As promptly as practicable
after the receipt of such notice and of any payment required pursuant to a
Board Resolution and, subject to Section 3.1, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such reasonable
regulations as the Company may prescribe, the Company shall issue and shall
deliver, at the office or agency at which such Security is surrendered, to such
Holder or on its written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Security (or
specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers' Certificate or supplemental indenture, and cash as
provided therein in respect of any fractional share of such Common Stock
otherwise issuable upon such conversion. Such conversion shall be deemed to
have been effected immediately prior to the close of business on the date on
which such notice and such payment, if required, shall have been received in
proper order for conversion by the Company and such Security shall have been
surrendered as aforesaid (unless such Holder shall have so surrendered such
Security and shall have instructed the Company to effect the conversion on a
particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the Holder of such Security as such Security
Holder shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock of the Company shall be
issuable upon such
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conversion shall be deemed to have become the holder or holders of record of
the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 3.7, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities surrendered for
conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted portion
of such Security.
SECTION 14.3 No Fractional Shares.
No fractional share of Common Stock of the Company shall be issued
upon conversions of Securities of any series. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered. If, except for
the provisions of this Section 14.3, any Holder of a Security or Securities
would be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Common Stock is listed or
admitted to unlisted trading privileges on a national securities exchange, on
the basis of the last reported sale price regular way on such exchange on the
last trading day prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange,
on the basis of the average of the bid and asked prices of such Common Stock in
the over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section,
"trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the New York
Stock Exchange, or if the Common Stock is not traded on the New York Stock
Exchange, on the principal exchange or market on which the Common Stock is
traded or quoted.
SECTION 14.4 Adjustment of Conversion Price.
The conversion price of Securities of any series that is convertible
into Common Stock of the Company shall be adjusted for any stock dividends,
stock splits, reclassification, combinations or similar transactions in
accordance with the terms of the supplemental indenture or Board Resolutions
setting forth the terms of the Securities of such series.
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Whenever the conversion price is adjusted, the Company shall compute
the adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted conversion price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2 and, if different, with the
Trustee. The Company shall forthwith cause a notice setting forth the adjusted
conversion price to be mailed, first class postage prepaid, to each Holder of
Securities of such series at its address appearing on the Security Register and
to any conversion agent other than the Trustee.
SECTION 14.5 Notice of Certain Corporate Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in
cash out of its retained earnings (other than a dividend for
which approval of any shareholders of the Company is
required); or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights (other than any such grant for
which approval of any shareholders of the Company is
required); or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding shares of Common Stock) or of any consolidation,
merger or share exchange to which the Company is a party and
for which approval of any shareholders of the Company is
required, or of the sale of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; then the Company shall cause to
be filed with the Trustee, and shall cause to be mailed to all
Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the
date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a
record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
share exchange, sale, dissolution, liquidation or winding up.
If at any time the Trustee
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shall not be the conversion agent, a copy of such notice shall
also forthwith be filed by the Company with the Trustee.
SECTION 14.6 Reservation of Shares of Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock or treasury
shares, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.
SECTION 14.7 Payment of Certain Taxes upon Conversion.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
SECTION 14.8 Nonassessability.
The Company covenants that all shares of its Common Stock which may be
issued upon conversion of Securities will upon issue in accordance with the
terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 14.9 Effect of Consolidation or Merger on Conversion Privilege.
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding of any series that
is convertible into Common Stock of the Company shall have the right, which
right shall be the exclusive conversion right thereafter available to said
Holder (until the expiration of the conversion right of such Security), to
convert such Security into the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such consolidation,
merger or sale by a holder of the number of shares of Common Stock of the
Company into which such Security might have been converted immediately prior to
such consolidation, merger or sale, subject to compliance with the other
provisions of this Indenture, such Security and such supplemental indenture.
Such supplemental indenture shall provide for adjustments which shall be as
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nearly equivalent as may be practicable to the adjustments provided for in such
Security. The above provisions of this Section shall similarly apply to
successive consolidations, mergers or sales. It is expressly agreed and
understood that anything in this Indenture to the contrary notwithstanding, if,
pursuant to such merger, consolidation or sale, holders of outstanding shares
of Common Stock of the Company do not receive shares of common stock of the
surviving corporation but receive other securities, cash or other property or
any combination thereof, Holders of Securities shall not have the right to
thereafter convert their Securities into common stock of the surviving
corporation or the corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Company into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger or sale, all as more fully provided in the first sentence of this
Section 14.9. Anything in this Section 14.9 to the contrary notwithstanding,
the provisions of this Section 14.9 shall not apply to a merger or
consolidation of another corporation with or into the Company pursuant to which
both of the following conditions are applicable: (i) the Company is the
surviving corporation and (ii) the outstanding shares of Common Stock of the
Company are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant to
the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
SECTION 14.10 Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any supplemental indenture, any
resolutions of the Board of Directors or written instrument executed by one or
more officers of the Company provided to be employed in making the same.
Neither the Trustee nor any conversion agent shall be accountable with respect
to the validity or value (or the kind or amount) of any shares of Common Stock
of the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
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failure of the Company to issue, transfer or deliver any shares of its Common
Stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion or to comply with any of the
covenants of the Company contained in this Article XIV or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company.
All Securities delivered for conversion shall be delivered to the Trustee to be
cancelled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.9.
SECTION 14.11 Repayment of Certain Funds upon Conversion.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article III hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article XIV shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
KMART CORPORATION
By _____________________________
[Seal] Name
Title
Attest:
_____________________
[Trustee]
By _____________________________
[Seal] Name
Title
Attest:
_____________________
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EXHIBIT 4(b)
KMART CORPORATION
TO
__________________________
Trustee
Indenture
Dated as of _________________
Subordinated Debt Securities
<PAGE> 2
TABLE OF CONTENTS(1)
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RECITALS OF THE COMPANY
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . 8
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . 9
SECTION 1.4 Acts of Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . 12
SECTION 1.6 Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . 13
SECTION 1.7 Language of Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.8 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.9 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . 14
SECTION 1.10 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.12 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.14 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.15 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.16 Immunity of Incorporators, Shareholders, Officers, Directors
and Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . . . . . 16
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . 17
SECTION 2.3 Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4 Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . 18
SECTION 2.5 Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
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(1) NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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ARTICLE III
THE SECURITIES . . . . . . . . . . . . . . . 19
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . 19
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . 22
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5 Registration, Registration of Transfer and Exchange . . . . . . . . . . . 27
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons . . . . . . 30
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . 31
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.11 Electronic Security Issuance . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . 34
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . 34
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.3 Company's Option to Effect Defeasance or Covenant Defeasance. . . . . . . 36
SECTION 4.4 Discharge and Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.5 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.6 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . 37
ARTICLE V
REMEDIES . . . . . . . . . . . . . . . . . . 40
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . 41
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . 42
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons . 44
SECTION 5.6 Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . 46
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.12 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . . . . 48
SECTION 6.1 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.2 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . 49
SECTION 6.3 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.4 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.5 Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.6 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . 50
SECTION 6.7 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . 52
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . 53
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . 53
SECTION 6.10 Preferential Collection of Claims Against Company . . . . . . . . . . . . 53
SECTION 6.11 Merger, Conversion Consolidation or Succession to Business . . . . . . . 53
SECTION 6.12 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . 54
SECTION 6.13 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . 56
SECTION 7.1 Preservation of Information; Communications to Holders . . . . . . . . . 56
SECTION 7.2 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE . . . . . . . . . 58
SECTION 8.1 Company May Consolidate, Etc. on Certain Terms . . . . . . . . . . . . . 58
SECTION 8.2 Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . 59
SECTION 8.3 Opinion of Counsel to Trustee. . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . 60
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . 60
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . 61
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . 62
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 63
SECTION 9.6 Reference in Securities to Supplemental Indentures . . . . . . . . . . . 63
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ARTICLE X
COVENANTS . . . . . . . . . . . . . . . . . . 63
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . 63
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.3 Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . 65
SECTION 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.6 Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . 67
SECTION 10.7 Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . 67
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . . . . . 68
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . 68
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . 68
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . 70
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . . . . . 72
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . 72
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . 72
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . 73
SECTION 13.1 Purposes for Which Meetings May be Called . . . . . . . . . . . . . . . . 73
SECTION 13.2 Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . 73
SECTION 13.3 Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . 74
SECTION 13.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.5 Determination of Voting Rights; Conduct and Adjournment of Meetings . . . 75
SECTION 13.6 Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . 76
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
ARTICLE XIV
CONVERSION OF SECURITIES . . . . . . . . . . . . . 76
SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 14.2 Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . 77
SECTION 14.3 No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 14.4 Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . 78
SECTION 14.5 Notice of Certain Corporate Actions . . . . . . . . . . . . . . . . . . . 79
SECTION 14.6 Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . 80
SECTION 14.7 Payment of Certain Taxes upon Conversion . . . . . . . . . . . . . . . . 80
SECTION 14.8 Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 14.9 Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . 80
SECTION 14.10 Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . 81
SECTION 14.11 Repayment of Certain Funds upon Conversion . . . . . . . . . . . . . . . 82
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.1 Securities Subordinate to Senior Debt . . . . . . . . . . . . . . . . . 83
SECTION 15.2 Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . . . . . . 83
SECTION 15.3 Prior Payment to Senior Debt Upon Acceleration of Securities . . . . . . 84
SECTION 15.4 No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . 85
SECTION 15.5 Payment Permitted in Certain Situations . . . . . . . . . . . . . . . . 85
SECTION 15.6 Subrogation to Rights of Holders of Senior Debt . . . . . . . . . . . . 86
SECTION 15.7 Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . 86
SECTION 15.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . 87
SECTION 15.9 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . 87
SECTION 15.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 15.11 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . 88
SECTION 15.12 Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . . . . . . 88
SECTION 15.13 Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 15.14 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . 89
SECTION 15.15 Certain Conversions Deemed Payment . . . . . . . . . . . . . . . . . . . 89
</TABLE>
v
<PAGE> 7
INDENTURE, dated as of __________, 1996, between Kmart Corporation, a
corporation duly organized and existing under the laws of the State of Michigan
(herein called the "Company"), having its principal office at 3100 West Big
Beaver Road, Troy, Michigan 48084, and __________________, as Trustee (herein
called the "Trustee") .
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its secured or
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of
America, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting princi-
<PAGE> 8
ples as are generally accepted in the United States of America
at the date of such computation; and
(4) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place, in connection with which the term is
used, or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 2.4, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
securities in global form for purposes of Sections 2.1 and 2.3 and Article III
of the Indenture.
2
<PAGE> 9
"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 each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Cedel S.A." means Cedel Bank, Societe Anonyme, or its successor.
"Commission" means the United States Securities and Exchange
Commission.
"Common Depository" has the meaning specified in Section 3.4.
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors or
the President or any Vice Chairman or any Vice President and by the Treasurer
or the Secretary or any Assistant Treasurer or any Assistant Secretary of the
Company and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
[NEW YORK, NEW YORK] at which at any particular time its corporate trust
business shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 4.4
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended specified for that purpose as contemplated by Section 3.1.
3
<PAGE> 10
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euro-clear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Date" has the meaning specified in Section 3.4.
"Holder", when used with respect to any Security, means in the case of
a Registered Security, the Person in whose name the 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, means 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 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors or the President or any Vice Chairman or any Vice
President and by the Treasurer or the Secretary or any Assistant Treasurer or
any Assistant Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable 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 5.2.
4
<PAGE> 11
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the
Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i)
the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.2, (ii) the principal amount of
a Security denominated in a foreign currency or currencies
shall be the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i)
above) of such Security, and (iii) Securities owned by the
Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction,
notice, consent or waiver, or upon any such determination as
to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the
Company or of such other obligor; and
5
<PAGE> 12
(iv) Securities as to which Defeasance has been effected
pursuant to Section 4.4.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and any premium and interest on any Securities or any Coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
10.2, the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.1 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 3.1., whether or not such day is a
Business Day.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
6
<PAGE> 13
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Senior Debt" means the principal of (and premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company to the extent that
such claim for past-petition interest is allowed in such proceeding) on all
indebtedness of the Company (including indebtedness of others guaranteed by the
Company), other than the Securities, whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, which is (i) for money
borrowed, (ii) evidenced by a note or similar instrument given in connection
with the acquisition of any businesses, properties or assets of any kind or
(iii) obligations of the Company as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles or leases of property or assets made as part of any sale
and lease-back transaction to which the Company is a party, including
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligation, unless in any case in the instrument creating or
evidencing any such indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to the Securities.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
7
<PAGE> 14
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States 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 (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any such U.S. Government Obligations or a specific
payment of principal of or interest on any such U.S. Government Obligations
held by such custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of principal of or interest
on the U.S. Government Obligations evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with
respect to compliance with a condition or covenant provided for in this
Indenture, except for certificates provided for in Section 10.7, shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto;
8
<PAGE> 15
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
9
<PAGE> 16
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article XIII, 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
and so voting at any such meeting. Proof of execution of any such instrument
or of a writing appointing any such agent or proxy, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts
10
<PAGE> 17
may be proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) With respect to the Securities of any Series, upon receipt by the
Trustee of (i) any written notice directing the time, method or place of
conducting any proceeding or exercising any trust or power pursuant to Section
5.1 with respect to Securities of such series or (ii) any written demand,
request or notice with respect to any matter on which the Holders of Securities
of such series are entitled to act under this Indenture, in each case from
Holders of less than, or proxies representing less than, the requisite
principal amount of Outstanding Securities or such series entitled to give such
demand, request or notice, the Trustee shall establish a record date for
determining Holders of Outstanding Securities of such series entitled to join
in such demand, request or notice, which record date shall be the close of
business on the day the Trustee received such demand, request or notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such demand, request or notice whether or
not such Holders remain Holders after such record date; provided, however, that
unless the Holders of the requisite principal amount of Outstanding Securities
of such series shall have joined in such demand, request or notice prior to the
day which is the ninetieth day after such record date, such demand, request or
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, (i) after the expiration of such 90-day
period, a new demand, request or notice identical to a demand, request or
notice which has been canceled pursuant to the proviso to the preceding
sentence or (ii) during any such 90-day period, a new demand, request or notice
which has been canceled pursuant to the proviso to the preceding sentence or
(iii) during any such 90-day period, a new demand, request or notice contrary
to or different from such demand, request or notice, in either of which events
a new record date shall be established pursuant to the provisions of this
clause.
(g) The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request,
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demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any expiration
date, any action identical to, or, at any time, contrary to or different from,
any action given or taken, or purported to have been given or taken, hereunder
by a Holder on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph. Notwithstanding the
foregoing or the Trust Indenture Act, the Company shall not set a record date
for, and the provisions of this paragraph shall not apply with respect to, any
action to be given or taken by Holders pursuant to Section 5.1, 5.2 or 5.12.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: ____________, or
(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, to the attention of its
Treasurer, or at any other address previously furnished in
writing to the Trustee by the Company.
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SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event:
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security
affected by such event, at the address of such Holder as it
appears in the Security Register, not earlier than the
earliest date, and not later than the latest date, prescribed
for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in
The City of New York, The City of London and in such other
city or cities as may be specified in such Securities on a
Business Day at least twice, the first such publication to be
not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. 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 mailed to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered Securities
given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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SECTION 1.7 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 1.8 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision
(an "incorporated provision") included in this Indenture by operation of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties
of incorporated provision shall control.
SECTION 1.9 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.11 Separability Clause.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12 Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13 Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflicts of laws.
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SECTION 1.14 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date, Maturity or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities or coupons other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such succeeding Business Day.
SECTION 1.15 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due on the Securities of any
series from the currency in which such sum is payable in accordance with the
terms of such Securities (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is rendered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
SECTION 1.16 Immunity of Incorporators, Shareholders, Officers, Directors
and Employees.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be
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had against any incorporator, shareholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, shareholders, officers, directors or employees,
as such, of the Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations or agreements contained in this Indenture or in any
of the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under of by reason of the obligations or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
All payments of interest and other amounts, if any, to be made by the
Trustee hereunder shall be made only from the money deposited with the Trustee
and only to the extent that the Trustee shall have sufficient income or
proceeds to make such payments in accordance with the terms of this Indenture,
and each holder hereof, by its acceptance of a Security, agrees that it will
look solely to the income and proceeds deposited with the Trustee to the extent
available for distribution to the holder hereof as provided and that the
Trustee is not personally liable in any manner to the holder hereof for any
amounts payable or any liability under this Indenture or any Security.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form
(including temporary or permanent global form) as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If tem-
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porary Securities of any series are issued in global form as permitted by
Section 3.4, the form thereof shall be established as provided in the preceding
sentence. If the forms of Securities or coupons of any series (or any such
temporary global Security) are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by Section 3.1, Securities
in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificates 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.
[TRUSTEE]
As Trustee
By
Authorized Signatory
SECTION 2.3 Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 3.1, then, notwithstanding clause (12) of Section 3.1
and the provisions of Section 3.2, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or
Section 3.4. Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global
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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 3.3 or 3.4 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 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 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 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security as
shall be specified in a written statement of the Holder of such permanent
global Security or, in the case of a permanent global Security in bearer form,
of Euro-clear or Cedel S.A. which is provided to the Trustee by such Person.
SECTION 2.4 Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
SECTION 2.5 Form of Conversion Notice.
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The Form of conversion notice for the conversion of Securities into
shares of Common Stock or other securities of the Company shall be in
substantially the form included with the applicable form of Securities as shall
be established pursuant to Section 2.1 hereinabove.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and
except for any Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in Section 3.5;
(4) 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
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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 3.4;
(5) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal
of the Securities of the series is payable;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the formula pursuant to which
such rate or rates shall be determined, the date or dates from
which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable, and the
Regular Record Date for any interest payable on any Registered
Securities on any Interest Payment Date and the basis upon
which interest shall be calculated if other than that of a
360-day year consisting of twelve 30-day months;
(7) the place or places where, subject to the provisions of
Sections 11.4 and 10.2, the principal of and any premium and
interest on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be
surrendered for conversion or exchange, notices and demands to
or upon the Company in respect of the Securities of the series
and this Indenture may be served and where notices to Holders
of Bearer Securities pursuant to Section 1.6 will be
published;
(8) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option
of the Company;
(9) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part as shall be
set forth in an Officers' Certificate or supplemental
indenture;
(10) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series, or particular Securities
within the series, pursuant to any sinking fund or analogous
provisions and the period or periods within which, the price
or prices at which and the terms and conditions upon which
such Securities shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(11) the terms of any right to convert or exchange Securities
of the series, either at the option of the Holder thereof or
the Company, into or for shares of Common Stock of the Company
or other securities or property, including without limitation
the period or periods within which and the price or prices
(including
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<PAGE> 27
adjustments thereto) at which any Securities of the series
shall be converted or exchanged, in whole or in part;
(12) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the denomination
or denominations in which any Bearer Securities of the series
shall be issuable, if other than the denomination of $5,000;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of and any
premium and interest on the Securities of the series shall be
payable if other than the currency of the United States of
America;
(14) if the principal of and any premium or interest on the
Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies,
including composite currencies, other than that or those in
which the Securities are stated to be payable, the currency or
currencies in which payment of the principal of and any
premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within
which and the terms and conditions upon which such election is
to be made;
(15) if the amount of payments of principal of and any
premium or interest on the Securities of the series may be
determined with reference to an index, the manner in which
such amounts shall be determined;
(16) if other than the principal amount thereof, the portion
of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
(17) the Person who shall be the Security Registrar, if other
than the Trustee;
(18) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one
or more Book-Entry Securities and, in such case, (a) the
Depository with respect to such Book-Entry Security or
Securities; and (b) the circumstances under which any such
Book-Entry Security may be exchanged for Securities registered
in the name of, and any transfer of such Book-Entry Security
may be registered to, a Person other than such Depository or
its nominee, if other than as set forth in Section 3.5;
(19) if the provisions of Section 4.4 or 4.5 are applicable
to the Securities of such series;
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(20) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
(21) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(22) whether and under what conditions additional amounts
will be payable to Holders of Securities of the series
pursuant to Section 10.4;
(23) the terms and conditions, if any, pursuant to which such
Securities are secured; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth in, or determined in the manner provided
in, the Officers' Certificate referred to above or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the
terms, or the manner of determining the terms, of the series.
SECTION 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be signed on behalf of the Company by both (a)
its Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or one of its Vice Presidents and (b) its Treasurer
or one of its Assistant Treasurers or its
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Secretary or one of its Assistant Secretaries, under its corporate seal which
may, but need not, be attested. The signature of any of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer of the Company.
Securities and Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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 Coupons 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 a Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Security
shall have furnished a certificate in the form specified in such Security as to
certain tax matters in respect of United States citizens, 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 global Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 3.4, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution and indenture supplement 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, maturity date,
date of issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any related
Coupons have been established in or pursuant to one or more Board Resolutions
as permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
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(a) that such forms have been established in conformity with
the provisions of this Indenture;
(b) that such terms, or the manner of determining such terms,
have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, together with any Coupons
appertaining thereto, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general
equity principles.
If such forms or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue or such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.9 together with a written
statement (which need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
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SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities 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 or coupons may determine, as evidenced by their execution of such
Securities or coupons. In the case of any series issuable as Bearer Securities,
such temporary Securities may be in global form. A temporary Bearer Security
shall be delivered only in compliance with the conditions set forth in Section
3.3.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 10.2 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and Cedel S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal
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amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary,
such temporary global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euro-clear as to the portion
of such temporary global Security held for its account then to be exchanged and
a certificate dated the Exchange Date or a subsequent date and signed by Cedel
S.A. as to the portion of such temporary global Security held for its account
then to be exchanged, each in the form or in such form as shall be specified in
such Security. 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 3.1, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, 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 3.3.
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
Euro-clear or Cedel S.A., as the case may be, to request such exchange on his
behalf and delivers to Euro-clear or Cedel S.A., as the case may be, a
certificate in such form as shall be specified in such Security, dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euro-clear and Cedel S.A., the Trustee,
any Authenticating Agent appointed for such series of Securities and each
Paying Agent. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euro-clear or Cedel S.A. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by section 3.1, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and Cedel S.A. on such Interest Payment Date upon delivery by Euro-clear and
Cedel S.A. to the Trustee of a certificate or certificates in such form as
shall be specified in such Security, for credit without further interest on or
after such Interest Payment Date to the respective accounts of the Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, a certificate in such form as shall be specified in such Security.
Any interest so
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received by Euro-clear and Cedel S.A. and not paid as herein provided shall be
returned to the Trustee immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company in accordance
with Section 10.3.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 10.2 a register (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon due surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 10.2 for such purpose in a Place of Payment for such
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 and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Registered Securities
may not be exchanged for Bearer Securities.
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
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee 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
Securities 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 10.2, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States.
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Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
agency on (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 3.1, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 3.1, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary or Common
Depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of such series without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such permanent global Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by
Section 3.1, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no 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
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proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance with
the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before any selection of Securities of that series
to be redeemed and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, any Book-Entry Security shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and a transfer of a Book-Entry Security or any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at
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any time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall be
so exchangeable and the transfer thereof so registerable or (iii) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be an Event of Default, with respect to the
Securities of such series. Upon the occurrence in respect of any Book-Entry
Security of any series of any one or more of the conditions specified in
clauses (i), (ii) or (iii) or the preceding sentence or such other conditions
as may be specified as contemplated by Section 3.1 for such series, such
Book-Entry Security may be exchanged for Securities registered in the names of,
and the transfer of such Book-Entry Security may be registered to, such Persons
(including Persons other than the Depository with respect to such series and
its nominees) as such Depository shall direct. Notwithstanding any other
provision of this Indenture, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Book-Entry
Security shall also be a Book-Entry Security and shall bear the legend
specified in Section 2.4 except for any Security authenticated and delivered in
exchange for, or upon registration of transfer of, Book-Entry Security pursuant
to the preceding sentence.
Notwithstanding anything in this Indenture or in the terms of
a Security to the contrary, the exchange of Bearer Securities for Registered
Securities will be subject to satisfaction of the provisions of the United
States federal income tax laws in effect at the time of such exchange. None of
the Company, the Trustee or any Authenticating Agent of the Company or the
Trustee (any of which, other than the Company, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any Bearer
Security for a Registered Security if as a result thereof and in the Company's
reasonable judgment, the Company would incur adverse consequences under then
applicable United States federal income tax laws.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security and such mutilated
Security or a Security with a mutilated coupon, if any, shall be cancelled by
the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them, then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company
shall, subject to the following paragraph, execute, and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for
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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 of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 10.2, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require 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 any coupons appertaining
thereto, 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 any coupons appertaining thereto, or the destroyed, lost or stolen
coupon shall be at any time enforceable by anyone, and any such new Security
and coupons, if any, 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 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record
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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)
and (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
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); and
(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 3.5,
each Security delivered under this Indenture upon registration of, transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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In the case of any Security which is converted into Common Stock of
the Company after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security whose Maturity is
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) 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 such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.5 and 3.7) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security shall 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 bearer of any Bearer Security and the Bearer of
any coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.9 Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Registered Securities and matured coupons so
delivered shall be promptly cancelled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be cancelled. All Bearer Securities and
unmatured coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any
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Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities and coupons held by the Trustee
shall be disposed of as directed by a Company Order, or in the absence of a
Company Order, may be destroyed by the Trustee.
Notwithstanding the foregoing, with respect to any Book-Entry
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 a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of such Book-Entry Security.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 Electronic Security Issuance.
The Securities may, pursuant to a Board Resolution and Officers'
Certificate complying with Section 3.1 hereof, be issued by means of an
electronic issuance system. Any such Security issuance instructions may specify
the name, address and taxpayer identification number of the Holder, the
principal amount and Maturity of the Security, the interest rate to be borne by
the Security and any other terms not inconsistent with such Board Resolution
and Officers' Certificate. Nothing in this Section 3.11 shall be construed as
prohibiting the Company from issuing Securities by any means not inconsistent
with the provisions of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for, and any right to receive
additional amounts, as provided in Section 10.4), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(1) either
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(A) all Securities 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 3.5, (ii) Securities and coupons which
have been destroyed, lost or stolenand which have been
replaced or paid as provided in Section 3.6, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 11.6, and (iv) Securities and
coupons for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(B) all such Securities 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) 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 deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose, an
amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not
theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
any interest to the date of such deposit (in the case
of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.5, the obligations of
the Trustee to any Authenticating Agent under Section 6.12 and, if money shall
have been deposited with the Trustee
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pursuant to clause (1)(B) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 4.1 or 4.3 and all money received by the Trustee in respect of such
U.S. Government Obligations shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest for whose payment such money and U.S. Government
Obligations has been deposited with or received by the Trustee. Money
deposited pursuant to this Section not in violation of this Indenture shall not
be subject to claims of the holders of Senior Debt under Article XV.
SECTION 4.3 Company's Option to Effect Defeasance or Covenant Defeasance.
If applicable to a particular series of Securities, the Company may
elect, at its option at any time, to have Section 4.4 or Section 4.5 applied to
any such series of Securities or any Securities of such series, as the case may
be, designated pursuant to Section 3.1 as being defeasible pursuant to such
Section 4.4 or 4.5, in accordance with any applicable requirements provided
pursuant to Section 3.1 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 3.1 for such Securities.
SECTION 4.4 Discharge and Defeasance.
If this Section 4.4 is specified, as contemplated by Section 3.1, to
be applicable to Securities of any series, then notwithstanding Section 4.1 and
upon compliance with the applicable conditions set forth in 4.6: (1) the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of any such series ("Defeasance"); and (ii) the
provisions of this Indenture as it relates to such Outstanding Securities shall
no longer be in effect (except as to the rights of Holders of Securities to
receive, solely from the trust fund described in Section 4.6, payment of (x)
the principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Securities on the Stated Maturity of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest or upon optional redemption and/or (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of that series
on that day on which such payments are due and payable in accordance with the
terms of the Indenture and of such Securities, the Company's obligations with
respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2, 10.3, and 10.4
and the rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 6.7 hereof);
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SECTION 4.5 Covenant Defeasance.
If this Section 4.5 is specified, as contemplated by Section 3.1, to
be applicable to any series of Securities or any Securities of such series, as
the case may be, (1) the Company shall be released from its obligations under
Sections 10.4 through 10.7, inclusive, and any covenants provided pursuant to
Section 3.1(21) or 9.1(2) for the benefit of the Holders of such Securities
that pursuant to the terms of such Securities are defeasible pursuant to this
Section 4.5 and (2) the occurrence of any event specified in Sections 5.1(4)
(with respect to any of Sections 10.3 through 10.7, inclusive, and any such
covenants provided pursuant to Section 3.1(21), 9.1(2), or 9.1(6) and 5.1(7)
(if pursuant to the terms of such Securities this Section 4.5 is applicable to
any such event specified in Section 5.1(7)) shall be deemed not to be or result
in an Event of Default, in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 4.6 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
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 specified Section (to
the extent so specified in the case of Section 5.1(4) and 5.1(7)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 4.6 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
4.4 or Section 4.5 to any applicable series of Securities or any Securities of
such series, as the case may be.
(1) either
(A) with respect to all Outstanding Securities of such series
or such Securities of such Series, as the case may be, with
reference to this Section 4.6, the Company has deposited or
caused to be deposited with the Trustee irrevocably (but
subject to the provisions of Section 4.2 and the last
paragraph of Section 10.3), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities, (X) lawful
money of the United States in an amount, or (Y) U.S.
Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their
terms will provide not later than the opening of business on
the due dates of any payment referred to in clause (i) or (ii)
of this subparagraph (1)(A) lawful money of the United States
in an amount, or (Z) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (i) the
principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest on such
Securities the Stated Maturity of such
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principal or installment of principal or interest or upon
optional redemption and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Securities
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 3.1, to be applicable to the Securities of such
series;
(2) the Company has paid or caused to be paid all other sums
payable with respect to such Securities;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of
Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit and no Event of
Default under Section 5.1(5) or Section 5.1(6) or event which
with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 5.1(5) or Section
5.1(6) shall have occurred and be continuing on the 91st day
after such date;
(5) in the event of an election to have Section 4.4 apply to
any series of Securities, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (a) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (b) since the date of
this Indenture there has been a change in applicable federal
income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
Holders of Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred;
(6) in the event of an election to have Section 4.5 apply to
any series of Securities, the Company shall have delivered to
the Trustee an Opinion of Counsel, to the effect that the
Holders of such Securities will not recognize gain or loss for
federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such
Securities and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would
be the case if such deposit and Covenant Defeasance were not
to occur;
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(7) if the Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall
have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not
cause such Securities to be desisted; and
(8) 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
Defeasance or Covenant Defeasance with respect to such
Securities of any such series have been complied with and an
Opinion of Counsel to the effect that either (i) as a result
of such deposit and the related exercise of the Company's
option under this Article, registration is not required under
the Investment Company Act of 1940, as amended, by the
Company, the trust funds representing such deposit or the
Trustee or (ii) all necessary registrations under said Act
have been effected.
Any deposits with the Trustee referred to in Section 4.6(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow/trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with
any mandatory sinking fund requirement, the applicable escrow trust agreement
shall provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon Defeasance with respect to all the Securities of a series, the
terms and conditions of such Securities, including the terms and conditions
with respect thereto set forth in this Indenture, shall no longer be binding
upon, or applicable to, the Company; provided that the Company shall not be
discharged from any payment obligations in respect of Securities which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
4.6) of the Company under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 6.5,
and the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive with respect to such series of Securities.
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 U.S. Government Obligations held by it as provided in this Section 4.6
with respect to any Securities 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 the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
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ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon or any
additional amounts payable in respect of any Security of that
series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series),
and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of
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) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law, or appointing a custodian, receiver, liquidation,
assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of their property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of
60 consecutive days; or
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(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidation, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of their property, or the making by it of
an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3) or (4) (if
the Event of Default under clause (4) is with respect to less than all series
of Securities then Outstanding) of Section 5.1 above occurs and is continuing,
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding hereunder (each such series
voting as a separate class), by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable. If an Event of Default described in
clause (4) (if the Event of Default under clause (4) relates to all series of
Securities then Outstanding), (5) or (6) of Section 5.1 occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if any Securities are Original Issue Discount
Securities such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding and interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
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The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) then Outstanding shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series (or of all the Securities,
as the case may be) and the principal of any and all Securities of such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series, (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and if any
and all Events of Default under the Indenture, other than the non-payment of
the principal of Securities (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities
of such Series, each series voting as a separate class (or of all the
Securities, as the case may be, voting as a single class), then Outstanding, by
written notice to the Company and to the Trustee, may waive all such defaults
with respect to such series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its consequence, but not
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if,
(1) default is made in the payment of any interest on any
Security of any series when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of that series and any coupons appertaining thereto,
to margin the whole
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amount then due and payable on such Securities of that series and coupons for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
the premium, if any, and overdue interest, at the rate or rates prescribed
therefor in such Securities of that series and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any coupons appertaining thereto by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of
Securities and coupons allowed in such judicial proceeding,
and
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(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, liquidation, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities 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 of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 5.5 Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities
and coupons in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable
on such Securities and coupons for principal and any premium
and interest, respectively.
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SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless;
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, but subject to
Article XV of 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 any premium and (subject to Section 3.7) interest on such
Security, and any additional amounts contemplated by Section 10.4 in respect of
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
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SECTION 5.9 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, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 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 3.6, 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 5.11 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 of Securities or coupons 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 5.12 Control by Holders of Securities.
The Holders of 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, and
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(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any coupons appertaining thereto waive any past
default hereunder with respect to the Securities of such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or any interest on any Security of such series except as
provided in Section 5.2, or
(2) in respect of a covenant or provision hereof which under
Article IX 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 impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
or coupon 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of or any premium or interest on any Security
or the payment of any coupon on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or
after the Redemption Date).
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SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order or as otherwise expressly provided herein and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of
any series or any related coupons pursuant to this Inden-
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ture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
SECTION 6.2 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.3 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Section 6.8 and 6.10, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.4 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 6.5 Compensation and Reimbursement..
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from
time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee or any predecessor Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder.
SECTION 6.6 Resignation and Removal; Appointment of Successor.
(a) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.7 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(b) 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.
(c) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act 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
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(2) the Trustee shall cease to be eligible under Section 6.9
and Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a
Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 5.14 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.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.7. 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
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.7, 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 of
that series and accepted appointment in the manner required by Section 6.7, 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 the Securities of such
series.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided in Section 1.6. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
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SECTION 6.7 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (l)
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
as 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.
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(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 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such 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 hereunder specified in this
Article.
SECTION 6.10 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.11 Merger, Conversion Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 6.12 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall promptly give notice
of such appointment to all Holders of Securities pursuant to Section 1.6. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.5.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[Trustee]
As Trustee
By
Authenticating Agent
By
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 1.2 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which if so requested by the Company, shall be
such Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
SECTION 6.13. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 5.1(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is,
or after notice or lapse
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of time or both would become, an Event of Default with respect to Securities of
such series.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 312(a) of
the Trust Indenture Act, (ii) received by the Trustee in its capacity as
Security Registrar and (iii) filed with it within the two preceding years
pursuant to Section 313(c)(2) of the Trust Indenture Act. The Trustee may (i)
destroy any list furnished to it as provided in Section 312(a) of the Trust
Indenture Act upon receipt of a new list so furnished, (ii) destroy any
information received by it as Paying Agent (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than March 20 or September 20 of
each year, a list containing the names and addresses of the Holders of
Securities obtained from such information since the delivery of the next
previous list, if any, (iii) destroy any list delivered to itself as Trustee
which was compiled from information received by it as Paying Agent (if so
acting) hereunder upon the receipt of a new list so delivered and (iv) destroy
not earlier than two years after filing, any information filed with it pursuant
to Section 313(c)(2) of the Trust Indenture Act. For purposes of Section
312(a) of the Trust Indenture Act, the term "stated intervals" shall mean
January 15 and July 15.
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.1(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 7.1(a), and as to the approximate cost
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of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities whose name and address appears in
the information preserved at the time by the Trustee in accordance with Section
7.1(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders of Securities or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) 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 agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 7.1(b), regardless of the
source from which such information was derived and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 7.1(b).
SECTION 7.2 Reports by Trustee.
The Trustee shall in each year transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto and
as of a date at least one year after the date of original issuance of the
Securities hereunder, and each anniversary thereafter, such report, if so
required, to be transmitted within 60 days of each such anniversary date.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange or
market center.
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SECTION 7.3. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the 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
required to be filed with respect to compliance by the Company with
the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Company May Consolidate, Etc. on Certain Terms.
The Company shall not merge or consolidate with any other corporation
or sell or convey all or substantially all of its assets to any Person, unless
(i) either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized under
the laws of the United States of America or any State thereof and shall
expressly assume the due and punctual payment of the principal of and interest
on all 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 or observed by the Company, by supplemental indenture
satisfactory to the Trust-
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ee, executed and delivered to the Trustee by such corporation, and (ii) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition.
SECTION 8.2 Successor Corporation Substituted.-
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the Company
prior to such succession 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 corporation 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 corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of 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
or 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 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.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Company or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee.
The Trustee may receive an Opinion of Counsel, prepared in accordance
with Section 1.2, as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are
expressly being included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registerable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
or
(6) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 2.1
and 3.1; or
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(7) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.7(b); or
(8) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article XIV,
including providing for the conversion of the Securities into
any security or property (other than the Common Stock of the
Company); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
that such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series 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 any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay additional amounts
pursuant to Section 10.4 (except as contemplated by Section
8.1 and permitted by Section 9.1(1)), or reduce the amount of
the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2 or change the
coin or currency in which any Security or any premium or
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), 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
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indenture, or the consent of whose Holders is required for any
waiver of certain defaults hereunder and their consequences
provided for in this Indenture, or reduce the requirements of
Section 13.4 for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified
in Section 10.2, or
(4) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the
references to "the Trustee" and concomitant changes in this
Section or the deletion of this proviso, in accordance with
the requirements of Sections 6.7(b) and 9.1(8), or
(5) make any change that adversely affects the right to
convert any Security as provided in Article XIV or pursuant to
Section 3.1 (except as permitted by Section 9.1) or decrease
the conversion rate or increase the conversion price of any
such Security, or
(6) if the Securities are secured, change the terms and
conditions pursuant to which the Securities are secured in a
manner adverse to the Holders of the secured Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act of 1939, as amended, in
effect on such date.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.1 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender outside the
United States of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 10.2 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series
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may be surrendered for registration of transfer, exchange, or conversion and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in The City of New
York, an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for conversion or exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Securities of that series pursuant to Section 10.4); provided, however, that if
the Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg 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 London, Luxembourg 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 a Place of Payment for that series located outside the United States
an office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for conversion or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt notice to the Trustee and to the
Holders as provided in Sections 1.5 and 1.6, respectively, of the location and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 10.4) at the office of the Trustee for such series located outside
the United States, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States; provided, however, that if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to
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Section 10.4) shall be made at the office of the Company's Paying Agent in The
City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium, interest or additional amounts, as the case may be, at
all offices or agencies outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the
making of any payment of principal of and any premium or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
or any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money and all
liability of the Company as trustee thereof shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, 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 10.4 Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context additional amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be
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construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's 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 United States Aliens without withholding for or on account of
any tax assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or willful misconduct on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such 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 that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.6 Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Securities of that series by private treaty at a
price (exclusive of expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that series as shown in The
Stock Exchange Daily Official List for the last trading day preceding the date
of purchase.
SECTION 10.7 Statement by Officers as to Default.
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The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate signed by its principal executive officer, principal financial
officer or principal accounting officer stating whether or not to the best
knowledge of the signer thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 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 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In the case of any redemption, at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), 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 (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series and of like tenor 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 and of like tenor 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 Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. If
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so specified in the Securities of a series, partial redemptions must be in an
amount not less than $1,000,000 principal amount of Securities.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities (or
portions thereof) which have been converted during a selection of Securities to
be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection. In any case where more than one Security is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Security.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed, and a statement to the effect that
on or after the Redemption Date upon surrender of such
Security a new Security in the principal amount equal to the
unredeemed portion will be issued;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue
on and after said date;
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(5) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining
thereto, if any maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) if applicable, the conversion rate or price, the date on
which the right to convert the Securities to be redeemed will
terminate and the place or places where such Securities may be
surrendered for conversion.
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
If any Security called for redemption is converted into Common Stock
of the Company, any money deposited with the Trustee or with any Paying Agent
or so segregated and held in trust for the redemption of such Security shall
(subject to any right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall on the Redemption Date become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Com-
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pany at the Redemption Price together with accrued interest to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 10.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Securities
whose Stated Maturity is 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 3.7.
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 10.2) and unless otherwise specified as contemplated by
Section 3.1 only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series and of like tenor of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a 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) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities, as provided for
by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 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
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manner specified in Section 11.3 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 11.6 and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 13.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 13.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.6, not less than
21 nor more than 180 days prior to the date fixed for the meeting (or, in the
case of a meeting of Holders with respect to Securities of a series all or part
of which are represented by a Book-Entry Security, not less than 20 nor more
than 40 days).
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 25% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 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.
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SECTION 13.3 Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with respect to the
Securities of a series all or part of which are represented by a Book-Entry
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to vote at such meeting, which
record date shall be the close of business on the day the notice of the meeting
of Holders is given in accordance with Section 13.2. The Holders on such record
date, and their designated proxies, and only such Persons, shall be entitled to
vote at any meeting of Holders. To be entitled to vote at any meeting of
Holders a Person shall (a) be a Holder of one or more Securities or (b) be a
Person appointed by an instrument in writing as proxy by a Holder of one or
more Securities; provided, however, that in the case of any meeting of Holders
with respect to the Securities of a series all or part of which are represented
by a Book-Entry Security, only Holders, or their designated proxies, of record
on the record date established pursuant to Section 13.3 hereof shall be
entitled to vote at such meeting. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 13.4 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; 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 a specified
percentage in aggregate principal amount of Outstanding Securities of a series
that is less or greater than a majority in principal amount of the Outstanding
Securities of a series, then, with respect to such action (and only such
action) the Persons entitled to vote such lesser or greater percentage in
principal amount of the Outstanding Securities of such series shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 13.2 (a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an 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.
Notwithstanding the foregoing, no meeting of Holders with respect to Securities
of any Series which is represented in whole or in part by a Book-Entry
Security, shall be adjourned to a date more than 90 days after the record date
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for such meeting unless the Trustee shall send out a new notice of meeting and
establish, in accordance with Section 13.3, a new record date for Holders
entitled to vote at such meeting.
Except as limited by the proviso to Section 9.2, 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 9.2 any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a specified percentage in aggregate
principal amount of Outstanding Securities of a series that is less or greater
than a majority in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly convened and at which
a quorum is present as aforesaid only 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.
SECTION 13.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.4 and the appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the 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 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 13.2(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
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(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $ 1,000 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 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 13.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.2 and, if
applicable, Section 13.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 Applicability of Article.
The provisions of this Article shall be applicable to the Securities
of any series which are convertible into shares of Common Stock of the Company,
and the issuance of such shares of Common Stock upon the conversion of such
Securities, except as otherwise specified as contemplated by Section 3.1 for
the Securities of such series. The terms and provisions applicable to the
conversion of Securities of any series into securities of the Company
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(other than Common Stock) shall, if applicable, be set forth in an Officers'
Certificate or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of such series in accordance with Section 3.1.
SECTION 14.2 Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of a Security
of a series with such a privilege shall surrender such Security to the Company
at the office or agency maintained for that purpose pursuant to Section 10.2,
accompanied by written notice to the Company that the Holder elects to convert
such Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. Securities
surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the registered
Holder or its attorney duly authorized in writing; and Securities so
surrendered for conversion during the period from the close of business on any
Regular Record Date to the opening of business on the next succeeding Interest
Payment Date (excluding Securities or portions thereof called for redemption
during such period) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of Section 3.7 relating
to the payment of Defaulted Interest by the Company. As promptly as practicable
after the receipt of such notice and of any payment required pursuant to a
Board Resolution and, subject to Section 3.1, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such reasonable
regulations as the Company may prescribe, the Company shall issue and shall
deliver, at the office or agency at which such Security is surrendered, to such
Holder or on its written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Security (or
specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers' Certificate or supplemental indenture, and cash as
provided therein in respect of any fractional share of such Common Stock
otherwise issuable upon such conversion. Such conversion shall be deemed to
have been effected immediately prior to the close of business on the date on
which such notice and such payment, if required, shall have been received in
proper order for conversion by the Company and such Security shall have been
surrendered as aforesaid (unless such Holder shall have so surrendered such
Security and shall have instructed the Company to effect the conversion on a
particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the Holder of such Security as such Security
Holder shall cease and the person or persons in whose name or names any
certifi-
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cate or certificates for shares of Common Stock of the Company shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby. Except as set forth above
and subject to the final paragraph of Section 3.7, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any dividends on the
Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted portion
of such Security.
SECTION 14.3 No Fractional Shares.
No fractional share of Common Stock of the Company shall be issued
upon conversions of Securities of any series. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered. If, except for
the provisions of this Section 14.3, any Holder of a Security or Securities
would be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Common Stock is listed or
admitted to unlisted trading privileges on a national securities exchange, on
the basis of the last reported sale price regular way on such exchange on the
last trading day prior to the date of conversion upon which such a sale shall
have been effected, or (ii) if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange,
on the basis of the average of the bid and asked prices of such Common Stock in
the over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section,
"trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the New York
Stock Exchange, or if the Common Stock is not traded on the New York Stock
Exchange, on the principal exchange or market on which the Common Stock is
traded or quoted.
SECTION 14.4 Adjustment of Conversion Price.
The conversion price of Securities of any series that is convertible
into Common Stock of the Company shall be adjusted for any stock dividends,
stock splits, reclassification,
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combinations or similar transactions in accordance with the terms of the
supplemental indenture or Board Resolutions setting forth the terms of the
Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute
the adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted conversion price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2 and, if different, with the
Trustee. The Company shall forthwith cause a notice setting forth the adjusted
conversion price to be mailed, first class postage prepaid, to each Holder of
Securities of such series at its address appearing on the Security Register and
to any conversion agent other than the Trustee.
SECTION 14.5 Notice of Certain Corporate Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in
cash out of its retained earnings (other than a dividend for
which approval of any shareholders of the Company is
required); or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights (other than any such grant for
which approval of any shareholders of the Company is
required); or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding shares of Common Stock) or of any consolidation,
merger or share exchange to which the Company is a party and
for which approval of any shareholders of the Company is
required, or of the sale of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; then the Company shall cause to
be filed with the Trustee, and shall cause to be mailed to all
Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the
date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a
record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification,
consolidation, merger,
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share exchange, sale, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up. If at any time the
Trustee shall not be the conversion agent, a copy of such
notice shall also forthwith be filed by the Company with the
Trustee.
SECTION 14.6 Reservation of Shares of Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock or treasury
shares, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock of the Company then issuable upon the
conversion of all outstanding Securities of any series that has conversion
rights.
SECTION 14.7 Payment of Certain Taxes upon Conversion.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
SECTION 14.8 Nonassessability.
The Company covenants that all shares of its Common Stock which may be
issued upon conversion of Securities will upon issue in accordance with the
terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 14.9 Effect of Consolidation or Merger on Conversion Privilege.
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding of any series that
is convertible into Common Stock of the Company shall have the right, which
right shall be the exclusive conversion right thereafter available to said
Holder (until the expiration of the conversion right of such Security), to
convert such Security into the kind and amount of
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shares of stock or other securities or property (including cash) receivable
upon such consolidation, merger or sale by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger or sale, subject to compliance
with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this Section
shall similarly apply to successive consolidations, mergers or sales. It is
expressly agreed and understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding shares of Common Stock of the Company do not receive shares of
common stock of the surviving corporation but receive other securities, cash or
other property or any combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into common stock of the
surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Company into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger or sale, all as more fully provided in the first sentence of this
Section 14.9. Anything in this Section 14.9 to the contrary notwithstanding,
the provisions of this Section 14.9 shall not apply to a merger or
consolidation of another corporation with or into the Company pursuant to which
both of the following conditions are applicable: (i) the Company is the
surviving corporation and (ii) the outstanding shares of Common Stock of the
Company are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant to
the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
SECTION 14.10 Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any supplemental indenture, any
resolutions of the Board of Directors or written instrument
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executed by one or more officers of the Company provided to be employed in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock of the Company, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any
Securities and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of its Common Stock or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion or to comply with any of the covenants of the Company contained in
this Article XIV or in the applicable supplemental indenture, resolutions of
the Board of Directors or written instrument executed by one or more duly
authorized officers of the Company. All Securities delivered for conversion
shall be delivered to the Trustee to be cancelled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section 3.9.
SECTION 14.11 Repayment of Certain Funds upon Conversion.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article III hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article XIV shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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ARTICLE XV
SUBORDINATION OF SECURITIES
Section 15.1 Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of all Senior Debt.
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Debt, or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any payment
on account of principal of (or premium, if any) or interest on the Securities,
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities, which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Debt is paid in full or payment thereof provided
for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bank-
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ruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt. Any taxes that have been
withheld or deducted from any payment or distribution in respect of the
Securities, or any taxes that ought to have been withheld or deducted from any
such payment or distribution that have been remitted to the relevant taxing
authority, shall not be considered to be an amount that the Trustee or the
Holder of any Security receives for purposes of this Section.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Debt which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
VIII shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article VIII.
Section 15.3 Prior Payment to Senior Debt Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Debt shall
be entitled to receive payment in full of all amounts due or to become due on
or in respect of all Senior Debt or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any payment
(including any payment which may be payable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities) by the Company on account of the principal of (or premium, if any)
or interest on the Securities or on account of the purchase or other
acquisition of Securities; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
Article XII by delivering and crediting pursuant to Section 12.2 Securities
which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration or which have been converted pursuant to Article
XIV.
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In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
Section 15.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt
beyond any applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Debt shall have occurred and be
continuing permitting the holders of such Senior Debt (or a trustee on behalf
of the holders thereof) to declare such Senior Debt due and payable prior to
the date on which it would otherwise have become due and payable, unless and
until such event of default shall have been cured or waived or shall have
ceased to exist and such acceleration shall have been rescinded or annulled, or
(b) in the event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no payment (including any
payment which may be payable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities) shall be
made by the Company on account of principal of (or premium, if any) or interest
on the Securities or on account of the purchase or other acquisition of
Securities; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article XII by
delivering and crediting pursuant to Section 12.2 Securities which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default or which have been converted pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
Section 15.5 Payment Permitted in Certain Situations.
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Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 14.2 or under the conditions
described in Section 14.3 or 14.4, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 15.6 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article (equally and
ratably with the holders of indebtedness of the Company which by its express
terms is subordinated to indebtedness of the Company to substantially the same
extent as the Securities are subordinated to the Senior Debt and is entitled to
like rights of subrogation) to the rights of the holders of such Senior Debt to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of (and premium, if any) and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of
the Senior Debt.
Section 15.7 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Debt on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Debt and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Debt, is intended to rank equally
with all other general obligations of the Company), to pay to the Holders of
the Securities the principal
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of (and premium, if any) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Debt; or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior Debt
to receive cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder.
Section 15.8 Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 15.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 15.10 Notice to Trustee.
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The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 6.1, shall be entitled in all respects to assume that no such facts
exist.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 15.11 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 15.12 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders or creditors
if it shall in good faith pay over or distribute to Holders of Securities or to
the Company or to any other Person cash,
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<PAGE> 95
property or securities to which any holders of Senior Debt shall be entitled by
virtue of this Article or otherwise.
Section 15.13 Rights of Trustee as Holder of Senior Debt, Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.5.
Section 15.14 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 14.13 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 15.15 Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article
XIV shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of
the principal of such Security. For the purposes of this Section, the term
"junior securities" means (a) shares of any stock of any class of the Company
and (b) securities of the Company which are subordinated in right of payment to
all Senior Debt which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, the right, which is
absolute and uncondi-
89
<PAGE> 96
tional, of the Holder of any Security to convert such Security in accordance
with Article XIV.
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<PAGE> 97
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
KMART CORPORATION
By _____________________________
[Seal] Name
Title
Attest:
_____________________
[Trustee]
By _____________________________
[Seal] Name
Title
Attest:
_____________________
91
<PAGE> 1
EXHIBIT 5(a)
Dickinson, Wright, Moon, Van Dusen & Freeman
500 Woodward Avenue, Suite 4000
Detroit, Michigan 48226
December 11, 1995
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Re: Kmart Corporation
Registration Statement on Form S-3
Gentlemen:
This opinion is furnished by us as counsel for Kmart
Corporation, a Michigan corporation (the "Company"), in connection with the
Registration Statement on Form S-3 (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission (the "Commission").
The Registration Statement relates to the issuance and sale from time to time,
pursuant to Rule 415 of the General Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), of the following
securities of the Company with an aggregate initial public offering price of up
to $1,200,000,000 or the equivalent thereof, based on the applicable exchange
rate at the time of sale, in one or more foreign currencies, currency units or
composite currencies as shall be designated by the Company: (i) senior or
subordinated debt securities, which may be secured or unsecured, in one or more
series (the "Debt Securities"), which may be issued under Indentures (the
"Indenture" or "Indentures") proposed to be entered into between the Company
and trustees to be named (the "Trustee" or "Trustees"); (ii) shares of
preferred stock, no par value (the "Preferred Stock"), in one or more series,
which may also be issued in the form of depositary shares (the "Depositary
Shares") evidenced by depositary receipts (the "Receipts") pursuant to one or
more deposit agreements (each a "Deposit Agreement") proposed to be entered
into between the Company and a depositary to be named (the "Depositary"); (iii)
shares of common stock, $1.00 par value per share, of the Company ("Common
<PAGE> 2
Kmart Corporation
December 11, 1995
Page 2
Stock"); (iv) warrants ("Warrants") to purchase Debt Securities, Preferred
Stock, Depositary Shares, Common Stock or other securities of the Company as
shall be designated by the Company at the time of offering issued pursuant to
one or more warrant agreements (each a "Warrant Agreement") proposed to be
entered into between the Company and a warrant agent to be named (the "Warrant
Agent"); and (v) such indeterminate amount of Debt Securities and number of
shares of Preferred Stock or Common Stock, as may be issued upon conversion,
exchange or exercise of any Debt Securities, Preferred Stock or Warrants,
including such shares of Preferred Stock or Common Stock as may be issued
pursuant to anti-dilution adjustments, in amounts, at prices and on terms to
be determined at the time of offering (the "Indeterminate Stock"). The Debt
Securities, the Preferred Stock, the Depositary Shares, the Common Stock, the
Warrants, and the Indeterminate Stock are collectively referred to herein as
the "Offered Securities."
This opinion is delivered in accordance with the requirements
of Items 601(b)(5) of Regulation S-K under the Securities Act.
We have examined and are familiar with originals or copies of
such documents, corporate records and other instruments as we have deemed
necessary or appropriate in connection with this opinion, including (i) the
form of Registration Statement relating to the Offered Securities; (ii) the
forms of Indentures; (iii) the Restated Articles of Incorporation of the
Company, as amended; (iv) the By-laws of the Company as currently in effect;
and (v) resolutions adopted to date by the Board of Directors of the Company
(the "Board of Directors") relating to the registration of the Offered
Securities.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
<PAGE> 3
Kmart Corporation
December 11, 1995
Page 3
of all documents submitted to us as certified, conformed or photostatic copies
and the authenticity of the originals of such latter documents. As to any
facts material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and
others. We have assumed that the Indentures, the Deposit Agreement and the
Warrant Agreement will be duly authorized, executed and delivered by the
Trustees, the Depositary and the Warrant Agent, respectively, and that any Debt
Securities, Receipts or Warrants that may be issued will be manually signed or
countersigned, as the case may be, by duly authorized officers of the Trustees,
the Depositary or the Warrant Agent, respectively.
We are members of the Bar in the State of Michigan and we do
not express any opinion as to the laws of any other jurisdiction other than the
laws of the United States of America to the extent referred to specifically
herein. Insofar as the opinions set forth below relate to the Debt Securities
and the Warrants as valid, binding and enforceable obligations of the Company,
we have relied solely upon an opinion letter of even date herewith from
Skadden, Arps, Slate, Meagher & Flom, New York, New York, with respect to all
matters of New York law related thereto. The Offered Securities may be issued
from time to time on a delayed or continuous basis, and this opinion is limited
to the laws, including the rules and regulations, as in effect on the date
hereof.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan.
<PAGE> 4
Kmart Corporation
December 11, 1995
Page 4
2. With respect to any series of Debt Securities (the
"Offered Debt Securities"), when (i) the Registration Statement, as finally
amended (including all necessary post-effective amendments), has become
effective and the applicable Indenture has been qualified under the Trust
Indenture Act of 1939, as amended; (ii) an appropriate prospectus supplement or
term sheet with respect to the Offered Debt Securities has been prepared,
delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder; (iii) if the Offered Debt Securities are to
be sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the Offered Debt Securities has been duly authorized,
executed and delivered by the Company and the other parties thereto; (iv) the
Board of Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate action
to approve the issuance and terms of the Offered Debt Securities and related
matters; (v) the terms of the Offered Debt Securities and of their issuance and
sale have been duly established in conformity with the applicable Indenture so
as not to violate any applicable law, the Restated Articles of Incorporation or
By-laws of the Company 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 body having jurisdiction
over the Company; (vi) the applicable Indenture has been duly authorized,
executed and delivered by the Company to the applicable Trustee; and (vii) the
Offered Debt Securities have been duly executed and authenticated in accordance
with the provisions of the applicable Indenture and duly delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor, (1)
the Offered Debt Securities (including any Debt Securities duly issued upon
exercise of any Warrants), when issued and sold in accordance with the
applicable Indenture and the applicable underwriting agreement, if any, or any
other duly authorized, executed and delivered valid and binding pur-
<PAGE> 5
Kmart Corporation
December 11, 1995
Page 5
chase or agency agreement, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, except to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), (c) public
policy considerations which may limit the rights of parties to obtain further
remedies, (d) the waiver contained in section 5.15 of the applicable Indenture
may be unenforceable, (e) requirements that a claim with respect to any Offered
Debt Securities denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and (f) governmental authority to limit,
delay or prohibit the making of payments outside the United States or in
foreign currencies, currency units or composite currencies; and (2) if
Preferred Stock or Common Stock is issuable upon conversion or exchange of any
convertible Offered Debt Securities, the Preferred Stock or Common Stock
issuable upon conversion or exchange of such Offered Debt Securities will be
validly issued, fully paid and nonassessable, assuming the execution,
authentication, issuance and delivery of the Offered Debt Securities and
conversion or exchange of the Offered Debt Securities in accordance with the
terms of the applicable Indenture.
3. With respect to the shares of any series of Preferred
Stock, including, if applicable, Depositary Shares representing fractional
interests in any Preferred Stock (together, the "Offered Preferred Stock"),
when (i) the Registration Statement, as finally amended (including all
necessary post-effective amendments), has become effective; (ii) an appropriate
prospectus supplement or term sheet with respect to the shares of the Offered
<PAGE> 6
Kmart Corporation
December 11, 1995
Page 6
Preferred Stock has been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder; (iii) if
the Offered Preferred Stock is to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the shares of
the Offered Preferred Stock has been duly authorized, executed and delivered by
the Company and the other parties thereto; (iv) the Board of Directors,
including any appropriate committee appointed thereby, and appropriate officers
of the Company have taken all necessary corporate action to approve the
issuance and terms of the shares of the Offered Preferred Stock and related
matters, including the adoption of a Certificate of Designation for the Offered
Preferred Stock in accordance with the applicable provisions of Michigan law
(the "Certificate of Designation") in the form to be filed as an exhibit to the
Registration Statement; any amendment thereto or any document incorporated by
reference therein; (v) the filing of the Certificate of Designation with the
Michigan Department of Commerce has duly occurred; (vi) the terms of the
Offered Preferred Stock and of their issuance and sale have been duly
established in conformity with the Company's Restated Articles of Incorporation
including the Certificate of Designation relating to the Offered Preferred
Stock and the By-laws of the Company so as not to violate any applicable law,
the Restated Articles of Incorporation or By-laws of the Company 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 body having jurisdiction over the Company; (vii) in the case of
Depositary Shares, the Deposit Agreement in the form to be filed as an exhibit
to the Registration Statement, any amendment thereto or any document
incorporated by reference therein has been duly authorized, executed and
delivered; and (viii) certificates representing the shares of the Offered
Preferred Stock are duly executed, countersigned, registered and delivered upon
payment of the agreed-upon consideration therefor (and, in the case
<PAGE> 7
Kmart Corporation
December 11, 1995
Page 7
of Depositary Shares, such Preferred Stock certificates are delivered to the
Depositary for deposit in accordance with the laws of the States of Michigan
and New York against issuance of the Receipts in accordance with the terms of
the Deposit Agreement), (1) the shares of the Offered Preferred Stock
(including any Preferred Stock duly issued upon exercise of any Warrants), when
issued and sold in accordance with the applicable underwriting agreement or any
other duly authorized, executed and delivered valid and binding purchase or
agency agreement, will be duly authorized, validly issued, fully paid and
nonassessable; and (2) if the Offered Preferred Stock is convertible or
exchangeable into Common Stock, the Common Stock issuable upon conversion or
exchange of the Offered Preferred Stock will be duly authorized, validly
issued, fully paid and nonassessable, assuming the execution, authentication,
issuance and delivery of the Offered Preferred Stock and the conversion or
exchange of the Offered Preferred Stock in accordance with the terms of the
Certificate of Designation.
4. With respect to any Receipts (the "Offered Receipts"),
when (i) the Registration Statement, as finally amended (including all
necessary post-effective amendments), has become effective; (ii) an appropriate
prospectus supplement or term sheet with respect to the Offered Receipts has
been prepared, delivered and filed in compliance with the Securities Act and
the applicable rules and regulations thereunder; (iii) if the Offered Receipts
are to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Receipts has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (iv) the Board of Directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the Offered
Receipts and related matters; (v) the terms of the Offered Receipts and of
their issuance and sale have been duly established in conformity with the
Deposit
<PAGE> 8
Kmart Corporation
December 11, 1995
Page 8
Agreement so as not to violate any applicable law, the Restated Articles of
Incorporation or By-laws of the Company 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 body
having jurisdiction over the Company; (vi) the Deposit Agreement relating to
the Offered Receipts in the form to be filed as an exhibit to the Registration
Statement, any amendment thereto or any document incorporated by reference
therein has been duly authorized, executed and delivered by the Company; and
(vii) the Offered Receipts have been duly executed, delivered and countersigned
in accordance with the provisions of the Deposit Agreement and duly issued and
sold in the applicable form to be filed as an exhibit to the Registration
Statement or any amendment thereto and in the manner contemplated in the
Registration Statement or any prospectus supplement or term sheet relating
thereto, the Offered Receipts, when issued and sold in accordance with the
applicable Deposit Agreement and the applicable underwriting agreement or any
other duly authorized, executed and delivered valid and binding purchase or
agency agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and (c) public policy
considerations which may limit the rights of parties to obtain further
remedies.
5. With respect to any offering of Common Stock, when (i) the
Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective; (ii) an appropriate
prospectus supplement or term sheet with respect to the Common Stock has been
prepared, delivered and filed in
<PAGE> 9
Kmart Corporation
December 11, 1995
Page 9
compliance with the Securities Act and the applicable rules and regulations
thereunder; (iii) if the Common Stock is to be sold pursuant to a firm
commitment underwritten offering, the underwriting agreement with respect to
the Common Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance of
the Common Stock and related matters; (v) the terms of the issuance and sale of
the Common Stock have been duly established in conformity with the Restated
Articles of Incorporation and By-laws of the Company so as not to violate any
applicable law, the Restated Articles of Incorporation or By-laws of the
Company 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 body having jurisdiction over
the Company; and (vi) certificates representing the shares of Common Stock are
duly executed, countersigned, registered and delivered upon payment of the
agreed upon consideration therefor, the shares of Common Stock (including any
duly issued upon exercise of any Warrants), when issued and sold in accordance
with the applicable underwriting agreement with respect to the Common Stock or
any other duly authorized, executed and delivered valid and binding purchase or
agency agreement, will be duly authorized, validly issued, fully paid and
nonassessable, provided that the consideration therefor is not less than the
par value thereof.
6. With respect to any series of Warrants (the "Offered
Warrants"), when (i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective; (ii) an
appropriate prospectus supplement or term sheet with respect to the Offered
Warrants has been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder; (iii) if
the
<PAGE> 10
Kmart Corporation
December 11, 1995
Page 10
Offered Warrants are to be sold pursuant to a firm commitment underwritten
offering, the underwriting agreement with respect to the Offered Warrants has
been duly authorized, executed and delivered by the Company and the other
parties thereto; (iv) the Board of Directors, including any appropriate
committee appointed thereby, and appropriate officers of the Company have taken
all necessary corporate action to approve the issuance and terms of the Offered
Warrants and related matters; (v) the terms of the Offered Warrants and of
their issuance and sale have been duly established in conformity with the
Warrant Agreement so as not to violate any applicable law, the Restated
Articles of Incorporation or By-laws of the Company 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 body having jurisdiction over the Company; (vi) the Warrant
Agreement relating to the Offered Warrants in the form to be filed as an
exhibit to the Registration Statement, any amendment thereto or any document
incorporated by reference therein has been duly authorized, executed and
delivered by the Company; and (vii) the Offered Warrants have been duly
executed, delivered and countersigned in accordance with the provisions of the
Warrant Agreement and duly issued and sold in the applicable form to be filed
as an exhibit to the Registration Statement or any amendment thereto and in the
manner contemplated in the Registration Statement or any prospectus supplement
or term sheet relating thereto, the Offered Warrants, when issued and sold in
accordance with the applicable Warrant Agreement and the applicable
underwriting agreement or any other duly authorized, executed and delivered
valid and binding purchase or agency agreement, will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights
<PAGE> 11
Kmart Corporation
December 11, 1995
Page 11
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and (c)
public policy considerations which may limit the rights of parties to obtain
further remedies.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5(a) to the Registration Statement. We also consent to
the reference to our firm under the heading "Legal Matters" in the Registration
Statement. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Dickinson, Wright,
Moon, Van Dusen & Freeman
<PAGE> 1
EXHIBIT 5(b)
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
December 11, 1995
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Re: Kmart Corporation
Registration Statement on Form S-3
Gentlemen:
This opinion is furnished by us as special counsel for Kmart Corporation,
a Michigan corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to the issuance and sale from time to time,
pursuant to Rule 415 of the General Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), of the following
securities of the Company with an aggregate initial public offering price of up
to $1,200,000,000 or the equivalent thereof, based on the applicable exchange
rate at the time of sale, in one or more foreign currencies, currency units or
composite currencies as shall be designated by the Company: (i) senior or
subordinated debt securities, which may be secured or unsecured, in one
or more series (the "Debt Securities"), which may be issued under one or more
indentures relating to either senior debt securities or subordinated debt
securities, as applicable (the "Indenture" or "Indentures"), proposed to be
entered into between the Company and trustees to be named (the "Trustee" or
"Trustees"); (ii) shares of preferred stock, no par value (the "Preferred
Stock"), in one or more series, which may also be issued in the form of
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Receipts") pursuant to one or more deposit agreements (each a "Deposit
Agreement") proposed to be entered into between the Company and a depos-
<PAGE> 2
Kmart Corporation
December 11, 1995
Page 2
itary to be named (the "Depositary"); (iii) shares of common stock, $1.00 par
value per share, of the Company ("Common Stock"); (iv) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock, Depositary Shares, Common Stock or
other securities of the Company as shall be designated by the Company at the
time of offering issued pursuant to one or more warrant agreements (each a
"Warrant Agreement") proposed to be entered into between the Company and a
warrant agent to be named (the "Warrant Agent"); and (v) such indeterminate
amount of Debt Securities and number of shares of Preferred Stock or Common
Stock, as may be issued upon conversion, exchange or exercise of any Debt
Securities, Preferred Stock or Warrants, including such shares of Preferred
Stock or Common Stock as may be issued pursuant to anti-dilution adjustments,
in amounts, at prices and on terms to be determined at the time of offering
(the "Indeterminate Stock"). The Debt Securities, the Preferred Stock, the
Depositary Shares, the Common Stock, the Warrants, and the Indeterminate Stock
are collectively referred to herein as the "Offered Securities."
This opinion is delivered in accordance with the requirements of
Items 601(b)(5) of Regulation S-K under the Securities Act.
We have examined and are familiar with originals or copies of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate in connection with this opinion, including (i) the form of
Registration Statement relating to the Offered Securities; (ii) the forms of
Indentures; (iii) the Restated Articles of Incorporation of the Company, as
amended to the date hereof; (iv) the By-laws of the Company as currently in
effect; and (v) resolutions adopted to date by the Board of Directors of the
Company (the "Board of Directors") relating to the registration of the Offered
Securities.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all
<PAGE> 3
Kmart Corporation
December 11, 1995
Page 3
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified,
conformed or photostatic copies and the authenticity of the originals of such
latter documents. As to any facts material to the opinions expressed herein
which were not independently established or verified, we have relied upon oral
or written statements and representations of officers and other representatives
of the Company and others. We have assumed that the Indentures, the Deposit
Agreement and the Warrant Agreement will be duly authorized, executed and
delivered by the Trustees, the Depositary and the Warrant Agent, respectively,
and that any Debt Securities, Receipts or Warrants that may be issued will be
manually signed or countersigned, as the case may be, by duly authorized
officers of the Trustees, the Depositary or the Warrant Agent, respectively.
We are members of the Bar in the State of New York and we do not
express any opinion as to the laws of any other jurisdiction other than the
laws of the United States of America to the extent referred to specifically
<PAGE> 4
Kmart Corporation
December 11, 1995
Page 4
herein. The Offered Securities may be issued from time to time on a delayed or
continuous basis, and this opinion is limited to the laws, including the rules
and regulations, as in effect on the date hereof.
We have assumed that (i) the Company has duly authorized the issuance
of the Offered Securities and the filing of the Registration Statement under
Michigan law; (ii) the Indentures, the Deposit Agreement and the Warrant
Agreement will be duly authorized, executed and delivered by the Company under
Michigan law; (iii) the choice of New York law in the Indentures, the Deposit
Agreement and the Warrant Agreement is legal and valid under the laws of other
applicable jurisdictions; and (iv) the execution by the Company of the
Indentures, the Deposit Agreement and the Warrant Agreement and the performance
by the Company of its obligations thereunder will not violate or conflict with
any laws of the State of Michigan. Reference is made to the opinion of
Dickinson, Wright, Moon, Van Dusen & Freeman filed as Exhibit 5(a) to the
Registration Statement with respect to matters under the laws of the State of
Michigan and our opinions set forth herein are subject to the same limitations,
qualifications and assumptions set forth in such opinion.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective and
the applicable Indenture has been qualified under the Trust Indenture Act of
1939, as amended; (ii) an appropriate prospectus supplement or term sheet with
respect to the Offered Debt Securities has been prepared, delivered and filed
in compliance with the Securities Act and the applicable rules and regulations
thereunder; (iii) if the Offered Debt Securities are to be sold pursuant to a
firm commitment underwritten offering, the underwriting agreement with respect
to the Offered Debt Securities has been duly authorized, executed and delivered
by the Company and the other parties thereto; (iv) the Board of Directors,
including any appropriate committee appointed thereby, and appropriate officers
of the Company have taken all necessary corporate action to approve the
issuance and terms of the Offered Debt Securities and related matters; (v) the
terms of the Offered Debt Securities and of their issuance and sale have been
duly established in conformity with the applicable Indenture so as not to
violate any applicable law, the Restated Articles of Incorporation or By-laws
of the Company 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 body having jurisdiction over
the Company; and (vi) the Offered Debt Securities have been duly executed and
authenticated in accordance with the provisions of the applicable Indenture and
duly delivered to the purchasers thereof upon payment of the agreed-upon
<PAGE> 5
Kmart Corporation
December 11, 1995
Page 5
consideration therefor, the Offered Debt Securities (including any Debt
Securities duly issued upon exercise of any Warrants), when issued and sold in
accordance with the applicable Indenture and the applicable underwriting
agreement, if any, or any other duly authorized, executed and delivered valid
and binding purchase or agency agreement, will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity), (c)
public policy considerations which may limit the rights of parties to obtain
further remedies, (d) the waiver contained in Section 5.15 of the applicable
Indenture may be unenforceable, (e) requirements that a claim with respect to
any Offered Debt Securities denominated other than in United States dollars (or
a judgment denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law, and (f) governmental authority
to limit, delay or prohibit the making of payments outside the United States or
in foreign currencies, currency units or composite currencies.
2. With respect to any Receipts (the "Offered Receipts"), when (i)
the Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective; (ii) an appropriate
prospectus supplement or term sheet with respect to the Offered Receipts has
been prepared, delivered and filed in compliance with the Securities Act and
the applicable rules and regulations thereunder; (iii) if the Offered Receipts
are to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Receipts has been duly
authorized,
<PAGE> 6
Kmart Corporation
December 11, 1995
Page 6
executed and delivered by the Company and the other parties thereto; (iv) the
Board of Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate action
to approve the issuance and terms of the Offered Receipts and related matters;
(v) the terms of the Offered Receipts and of their issuance and sale have been
duly established in conformity with the Deposit Agreement so as not to violate
any applicable law, the Restated Articles of Incorporation or By-laws of the
Company 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 body having jurisdiction over
the Company; and (vi) the Offered Receipts have been duly executed, delivered
and countersigned in accordance with the provisions of the Deposit Agreement
and duly issued and sold in the applicable form to be filed as an exhibit to
the Registration Statement or any amendment thereto and in the manner
contemplated in the Registration Statement or any prospectus supplement or term
sheet relating thereto, the Offered Receipts, when issued and sold in
accordance with the applicable Deposit Agreement and the applicable
underwriting agreement or any other duly authorized, executed and delivered
valid and binding purchase or agency agreement, will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity); and
(c) public policy considerations which may limit the rights of parties to
obtain further remedies.
3. With respect to any series of Warrants (the "Offered Warrants"),
when (i) the Registration Statement, as finally amended (including all
necessary post-effec-
<PAGE> 7
Kmart Corporation
December 11, 1995
Page 7
tive amendments), has become effective; (ii) an appropriate prospectus
supplement or term sheet with respect to the Offered Warrants has been
prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii) if the Offered Warrants are
to be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Warrants has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (iv) the Board of Directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the Offered
Warrants and related matters; (v) the terms of the Offered Warrants and of
their issuance and sale have been duly established in conformity with the
Warrant Agreement so as not to violate any applicable law, the Restated
Articles of Incorporation or By-laws of the Company 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 body having jurisdiction over the Company by the Company and the
applicable Warrant Agent; and (vi) the Offered Warrants have been duly
executed, delivered and countersigned in accordance with the provisions of the
Warrant Agreement and duly issued and sold in the applicable form to be filed
as an exhibit to the Registration Statement or any amendment thereto and in the
manner contemplated in the Registration Statement or any prospectus supplement
or term sheet relating thereto, the Offered Warrants, when issued and sold in
accordance with the applicable Warrant Agreement and the applicable
underwriting agreement or any other duly authorized, executed and delivered
valid and binding purchase or agency agreement, will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or
<PAGE> 8
Kmart Corporation
December 11, 1995
Page 8
other similar laws now or hereafter in effect relating to creditors' rights
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and (c)
public policy considerations which may limit the rights of parties to obtain
further remedies.
Dickinson, Wright, Moon, Van Dusen & Freeman is permitted to rely
upon this opinion for the purpose of delivering its opinion to the Company in
its capacity as counsel to the Company in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. We hereby consent
to the filing of this opinion with the Commission as Exhibit 5(b) to the
Registration Statement. We also consent to the reference to us under the
heading "Legal Matters" in the Registration Statement. In giving this consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the Rules and Regulations of
the Commission.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom
<PAGE> 1
EXHIBIT 12
KMART CORPORATION AND SUBSIDIARY COMPANIES
EXHIBIT 12 - STATEMENT REGARDING COMPUTATION OF RATIOS OF EARNINGS TO
FIXED CHARGES AND OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
(Dollars in Millions)
Fiscal Year Ended Trailing 52 Weeks Ended(1)
--------------------------------------------------------------- --------------------------
January 25, January 26, January 27, January 29, January 30, October 25, October 26,
1995 1994 1993 1992 1991 1995 1994
----------- ----------- ----------- ----------- ----------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Net income (loss) from
continuing retail operations
before extraordinary item and
the effect of accounting
changes. . . . . . . . . . . $ 104 $ (260) $ 867 $ 752 $ 672 $ (137) $ (445)
Income taxes. . . . . . . . . 10 (150) 451 413 371 (95) (262)
---- ------ ------ ------ ------ ---- -----
Pre-tax income (loss) from
continuing retail operations 114 (410) 1,318 1,165 1,043 (232) (707)
Equity income of unconsolidated
affiliated retail companies
that exceeds distributions. . 14 (2) (5) -- 3 (9) 14
Fixed charges per below . . . 757 736 651 576 542 715 740
Less interest capitalized
during the period . . . . . (17) (14) (16) (11) (7) (15) (13)
---- ------ ------ ------ ------ ---- -----
Earnings from continuing
retail operations . . . . . $ 868 $ 310 $ 1,948 $ 1,730 $ 1,581 $ 459 $ 34
==== ====== ====== ====== ====== ==== =====
Fixed Charges:
Interest expense . . . . . . $ 520 $ 506 $ 456 $ 411 $ 404 $ 482 $ 511
Rent expense - portion of
operating rentals representative
of the interest factor . . . 218 214 177 153 130 218 214
Other . . . . . . . . . . . . 19 16 18 12 8 15 15
---- ------ ------ ------ ------ ---- -----
$ 757 $ 736 $ 651 $ 576 $ 542 $ 715 $ 740
==== ====== ====== ====== ====== ==== =====
Ratio of earnings to
fixed charges . . . . . . . 1.2 -- (2) 3.0 3.0 2.9 -- (3) -- (4)
==== ====== ====== ====== ====== ==== =====
Preferred dividend
requirements . . . . . . . . $ 49 $ 88 $ 80 $ 44 $ -- $ 9 $ 68
Ratio of pre-tax income to net
income . . . . . . . . . . 1.10 -- 1.52 1.55 -- -- --
---- ------ ------ ------ ------ ---- -----
Preferred dividend factor . . 54 88 122 68 -- 9 68
Total fixed charges per
above . . . . . . . . . . . 757 736 651 576 542 715 740
---- ------ ------ ------ ------ ---- -----
Total fixed charges and
preferred dividends . . . . $ 811 $ 824 $ 773 $ 644 $ 542 $ 724 $ 808
==== ====== ====== ====== ====== ==== =====
Ratio of earnings to combined
fixed charges and preferred
stock dividends . . . . . . 1.1 -- (2) 2.5 2.7 2.9 -- (3) -- (4)
==== ====== ====== ====== ====== ==== =====
</TABLE>
(1) Due to the seasonality of the Company's business, the ratio of earnings
to fixed charges is computed on a trailing 52-week basis.
(2) The deficiency of earnings from continuing retail operations versus
fixed charges was $426 million for the fiscal year ended January 26,
1994. Excluding the pre-tax provision of $1,130 million for store
restructuring and other charges, the ratio of earnings to fixed charges
was 2.0 for the fiscal year ended January 26, 1994. The deficiency of
earnings from continuing retail operations versus combined fixed charges
and preferred dividends was $514 million for the fiscal year ended
January 26, 1994.
(3) The deficiency of earnings from continuing retail operations versus
fixed charges was $256 million for the trailing 52 weeks ended October
25, 1995. The deficiency of earnings from continuing retail operations
versus combined fixed charges and preferred dividends was $265 million
for the trailing 52 weeks ended October 25, 1995.
(4) The deficiency of earnings from continuing retail operations versus
fixed charges was $706 million for the trailing 52 weeks ended October
26, 1994. Excluding the pre-tax provision of $1,130 million for store
restructuring and other charges, the ratio of earnings to fixed charges
was 1.6 for the trailing 52 weeks ended October 26, 1994. The
deficiency of earnings from continuing retail operations versus combined
fixed charges and preferred dividends was $774 million for the trailing
52 weeks ended October 26, 1994.
Certain prior year amounts have been restated for the effect of discontinued
operations.
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 27, 1995, which appears on page 30 of the 1994 Annual Report to
Shareholders of Kmart Corporation and its subsidiary companies, which is
incorporated by reference in Kmart Corporation's Annual Report on Form 10-K for
the year ended January 25, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement Schedules, which appears on
page 11 of such Annual Report on Form 10-K. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
200 Renaissance Center
Detroit, Michigan
December 11, 1995
