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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (Date of earliest event reported) July 7, 1999
AMR CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-8400 75-1825172
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(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
4333 Amon Carter Blvd. Fort Worth, Texas 76155
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(Address of principal executive offices) (Zip Code)
(817) 963-1234
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(Registrant's telephone number)
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ITEM 7. EXHIBITS. The following documents are filed with reference to the
Registration Statement on Form S-3 (Registration No. 333-68211) (which
Registration Statement constitutes a post-effective amendment to Registration
Statements on Form S-3 (Registration Nos. 33-46325 and 33-52121)) of AMR
Corporation (the "Company"):
1. Underwriting Agreement, dated July 7, 1999, between the Company and
Goldman, Sachs & Co. and Salomon Smith Barney Inc., as Representatives
acting on behalf of the Underwriters named in Schedule I thereto.
4(a). Indenture, dated as of December 1, 1998, between the Company and Citibank,
N.A.
4(b). Supplemental Indenture No. 1, dated July 13, 1999, from the Company to
Citibank, N.A., as Trustee, including Form of 7.875% Public Income NotES
due July 13, 2039 as Exhibit A thereto.
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMR CORPORATION
Date: July 12, 1999 By /s/ CHARLES D. MARLETT
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Charles D. MarLett
Corporate Secretary
3
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
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<S> <C> <C>
1. Underwriting Agreement, dated July 7, 1999, between the
Company and Goldman, Sachs & Co. and Salomon Smith Barney
Inc., as Representatives acting on behalf of the Underwriters
named in Schedule I thereto.....................................................6
4(a). Indenture, dated as of December 1, 1998, between the Company and
Citibank, N.A..................................................................37
4(b). Supplemental Indenture No. 1, dated July 13, 1999, from the
Company to Citibank, N.A., as Trustee, including Form of 7.875%
Public Income NotES due July 13, 2039 as Exhibit A thereto....................114
</TABLE>
4
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EXHIBIT 1
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AMR CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
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Dated: July 7, 1999
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AMR CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
July 7, 1999
To Goldman, Sachs & Co.
Salomon Smith Barney Inc. as
Representatives of the Underwriters
named in Schedule I
Dear Sirs:
AMR Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriter or underwriters named in Schedule
I hereto certain of its debt securities (the "Offered Securities") as specified
in Schedule II on the terms and conditions stated herein and in said Schedule
II. The Offered Securities will be issued under an indenture dated as of
December 1, 1998 (the "Indenture") between the Company and Citibank, N.A., as
Trustee (the "Trustee"). As used herein, unless the context otherwise requires,
the term "Underwriters" shall mean the firm or firms named as Underwriter or
Underwriters in Schedule I and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate is purchasing the Offered Securities,
or the representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as indicated in Schedule I.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "1933 Act"). The
Company has prepared and filed on such Form with the Securities and
Exchange Commission (the "Commission") a registration statement (File
No. 333-68211), which also constitutes post-effective Amendment No. 1
to Registration Statement File No. 33-52121 and Registration Statement
File No. 33-46325 (collectively, as amended at the date hereof,
including the exhibits thereto and the documents incorporated by
reference therein, the "Registration Statements"), relating to certain
debt securities of the Company (including the Offered Securities) and
the offering thereof from time to time in accordance with Rule 415
under the 1933 Act. Registration Statement File No. 333-68211 includes
a basic prospectus referred to below which, as supplemented from time
to time, will be used in connection
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with all offerings of such debt securities. The Registration Statements
have been declared effective by the Commission. As provided in Section
3(a), a prospectus supplement reflecting the terms of the Offered
Securities, the terms of the offering thereof and the other matters set
forth therein has been prepared and will be filed together with the
basic prospectus referred to below pursuant to Rule 424 under the 1933
Act (such prospectus supplement, in the form first filed on or after
the date hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement"). The basic prospectus, included in
Registration Statement File No. 333-68211 and relating to all offerings
of securities under the Registration Statements, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that
if such basic prospectus is amended on or prior to the date on which
the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to such basic prospectus as so amended and
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein. Any reference herein to the terms
"amendment" or "supplement" with respect to the Registration
Statements, to the Prospectus or to any preliminary prospectus shall be
deemed to refer to and include any documents filed with the Commission
under the 1934 Act after the date hereof, the date the Prospectus is
filed with the Commission, or the date of such preliminary prospectus,
as the case may be, and incorporated therein by reference pursuant to
Item 12 of Form S-3 under the 1933 Act.
(b) On the original effective date of the Registration
Statements, on the effective date of any post-effective amendment
thereto, if any, and on the date of the filing by the Company of any
Annual Report on Form 10-K after the original filing of such
Registration Statements, such Registration Statements complied in all
material respects with the applicable requirements of the 1933 Act and
the rules and regulations of the Commission thereunder (the "1933 Act
Regulations"), and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), and the applicable rules and regulations of the Commission
thereunder (the "1939 Act Regulations") and did not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; the Registration Statements and any amendments thereof, on
the date hereof, and the Prospectus, and any amendments thereof and
supplements thereto, as of their respective filing or issue dates and
at the Closing Time (as defined below), comply and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the 1939 Act Regulations, and none
of such documents, as of any such respective dates, includes or will
include an untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; except that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company in connection with the Registration Statements
or the Prospectus
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or any amendment thereof or supplement thereto by or on behalf of you
expressly for use in the Registration Statements or the Prospectus, or
to statements or omissions in those parts of the Registration
Statements which constitute the Statement of Eligibility under the 1939
Act (Form T-1) of the Trustee.
(c) The consolidated financial statements incorporated by
reference in the Registration Statements and Prospectus present fairly
the consolidated financial position of the Company as of the dates
indicated and the consolidated results of its operations and cash flows
for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein, and the
supporting schedules incorporated by reference in the Registration
Statements present fairly the information required to be stated
therein.
(d) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements
of the 1934 Act and the rules and regulations thereunder.
(e) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change in the condition, financial or otherwise,
results of operations or general affairs of the Company and its
subsidiaries taken as a whole.
(f) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, has
the corporate power and authority under such laws to own its properties
and conduct its business as described in the Prospectus and is duly
qualified to do business as a foreign corporation in good standing in
the state in which its principal place of business is located.
(g) Each of American Airlines Inc. ("American"), AMR Eagle
Holding Corporation and The SABRE Group Holdings, Inc. is a corporation
duly incorporated and validly existing in good standing under the laws
of its jurisdiction of incorporation, has full corporate power and
authority under such laws to own its properties and to conduct its
business as such business is described in the Prospectus and, in the
case of American, is duly qualified to do business as a foreign
corporation in good standing in the jurisdictions in the United States
of America in which it has intrastate routes or has a principal office
or major overhaul facility and, in the case of each of such other
subsidiaries, is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which such qualification
is required. American is an "air carrier" and a "citizen of the United
States" within the meaning of that portion of the United States Code
comprising those provisions formerly known as the Federal Aviation Act
of 1958, as amended (the
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"Aviation Act"). All of the issued and outstanding capital stock of
each such corporation has been duly authorized and validly issued, is
fully paid and non-assessable and (except for The SABRE Group Holdings,
Inc., approximately 82% of which is owned by the Company) is owned by
the Company, directly or through subsidiaries, free and clear of any
liens, encumbrances, equities or claims.
(h) The Indenture, each supplement thereto, if any, to the
date hereof and the supplement thereto or Board Resolution (as defined
in the Indenture) setting forth the terms of the Offered Securities
(the Indenture, as so supplemented by such supplement or supplements or
Board Resolution, being herein referred to as the "Designated
Indenture"), have been duly authorized by the Company. The Indenture as
executed is substantially in the form filed as an exhibit to
Registration Statement File No. 333-68211. The Designated Indenture,
when duly executed and delivered (to the extent required by the
Indenture) by the Company, will constitute a valid and binding
obligation of the Company and will have been duly qualified under the
1939 Act.
(i) The Offered Securities have been duly authorized by the
Company and, when duly executed by the Company and authenticated by the
Trustee pursuant to the provisions of the Designated Indenture and
delivered in accordance with the terms of the Designated Indenture and
this Agreement, will be duly issued and will constitute valid and
binding obligations of the Company; and the holders thereof will be
entitled to the benefits of the Designated Indenture.
(j) The Offered Securities and the Designated Indenture
conform in all material respects to the descriptions thereof in the
Prospectus.
(k) The issuance and delivery by the Company of the Offered
Securities, the execution and delivery by the Company of this Agreement
and the Designated Indenture, the consummation by the Company of the
transactions herein and therein contemplated, and compliance by the
Company with the terms hereof and thereof do not and will not conflict
with, or result in a breach of, any of the terms or provisions of, or
constitute a default under, the Certificate of Incorporation or
By-Laws, as amended, of the Company or American or any of their
subsidiaries or any material indenture, mortgage, or other agreement or
instrument to which the Company or American or any of their
subsidiaries is a party or by which any of their respective properties
is bound, or any applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or American
or any of their subsidiaries or any of their respective properties; and
no consent, approval, authorization or order of any government,
governmental instrumentality or court, domestic or foreign, is required
for valid authorization, issuance and delivery of the Offered
Securities, the valid authorization, execution, delivery and
performance of this Agreement and the Designated Indenture or the
consummation by the Company of the
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transactions contemplated by this Agreement and the Designated
Indenture, except such as are required under the 1933 Act, the 1939 Act
and the securities or Blue Sky laws of the various states.
(m) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company.
(n) Ernst & Young LLP, who reported on the annual consolidated
financial statements of the Company incorporated by reference in the
Registration Statements, are independent auditors as required by the
1933 Act and the 1933 Act Regulations.
2. Purchase and Sale. (a) On the basis of the representations
and warranties herein contained (except as may be otherwise specified in
Schedule II) and subject to the terms and conditions herein and therein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the purchase
price to the Underwriters set forth in Schedule II, the principal amount of
Offered Securities set forth opposite the name of such Underwriter in Schedule
I.
(b) Payment of the purchase price for, and delivery of, the
Offered Securities shall be made at the date, time and location or locations
specified in Schedule II, or at such other date, time or location or locations
as shall be agreed upon by the Company and you, or as shall otherwise be
provided in Section 7 (such date and time being herein called the "Closing
Time"). Unless otherwise specified in Schedule II, payment shall be made to the
Company by federal funds wire transfer payable to the order of the Company,
against delivery to you for the respective accounts of the several Underwriters
of the Offered Securities. Such Offered Securities shall be in such authorized
denominations and, if in registered form, registered in such names as you may
request in writing at least two full business days before the Closing Time.
Certificates for such Offered Securities, which may be in temporary form, will
be made available for examination and packaging by you at the location or
locations at which they are to be delivered at the Closing Time (or such other
location or locations as may be specified for that purpose in Schedule II) not
later than 10:00 A.M. on the business day prior to the Closing Time.
(c) The Company will pay to you at the Closing Time for the
accounts of the Underwriters any fee, commission or other compensation which is
specified in Schedule II hereto. Such payment will be made by federal funds wire
transfer or similar same day funds.
3. Agreements. The Company covenants with each Underwriter as
follows:
(a) If reasonably requested by you in connection with the
offering of the Offered Securities, the Company will prepare a
preliminary prospectus supplement containing such information as you
and the Company deem appropriate, and, immediately following the
execution of this Agreement, the Company will prepare a Prospectus
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Supplement which complies with the 1933 Act and the 1933 Act
Regulations and which sets forth the principal amount of the Offered
Securities and their terms not otherwise specified in the basic
prospectus relating to all offerings of securities under Registration
Statement File No. 333-68211, the name of each Underwriter
participating in the offering and the principal amount of the Offered
Securities that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in
connection with the offering, the price at which the Offered Securities
are to be purchased by the Underwriters from the Company, any initial
public offering price, any selling concession and reallowance, and such
other information as you and the Company deem appropriate in connection
with the offering of the Offered Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of any preliminary prospectus supplement
and the Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the
Offered Securities is required to be delivered under the 1933 Act, the
Company will promptly advise you (i) of the effectiveness of any
amendment to the Registration Statements, (ii) of the electronic
transmittal or the delivery to the Commission for filing of any
supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, (iii) of any
request by the Commission for any amendment of the Registration
Statements or any amendment or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statements
or the institution or threatening of any proceeding for that purpose,
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the 1933 Act Regulations, the
Company promptly will prepare and file with the Commission, subject to
paragraph (d) of this Section 3, an amendment or supplement which will
correct such statement or omissions or an amendment which will effect
such compliance.
(d) At any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, the Company
will give you notice of its intention to
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file any amendment to the Registration Statements or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed within
a reasonable time in advance of filing, and will not file any such
amendment or supplement or other documents in a form to which you shall
reasonably object.
(e) The Company has furnished, or will furnish to you and your
counsel without charge, conformed copies of the Registration Statements
as originally filed and of all amendments thereto, whether filed before
or after such Registration Statements originally become effective
(including exhibits thereto and the documents incorporated therein by
reference), and, so long as delivery of a prospectus by an underwriter
or dealer may be required by the 1933 Act, as many copies of each
preliminary prospectus, the Prospectus and any amendments thereof and
supplements thereto as you may reasonably request.
(f) The Company will use its best efforts to qualify the
Offered Securities for sale under the laws of such jurisdictions as you
may reasonably request and will maintain such qualifications in effect
so long as required for the distribution of such Offered Securities.
The Company, however, shall not be obligated to qualify as a foreign
corporation or file any general consent to service of process under the
laws of any such jurisdiction or subject itself to taxation as doing
business in any such jurisdiction.
(g) The Company, during the period when a prospectus relating
to the Offered Securities is required to be delivered under the 1933
Act, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(h) The Company will make generally available to its security
holders, in each case as soon as practicable, but not later than 45
days after the close of the period covered thereby (90 days in case the
period covered corresponds to a fiscal year of the Company), earnings
statements of the Company which will comply as to form with the
provisions of Rule 158 under the 1933 Act.
(i) Between the date of this Agreement and the Closing Time,
the Company will not, without your prior consent, offer, sell or enter
into any agreement to sell any public debt securities registered under
the 1933 Act (other than the Offered Securities).
(j) If and to the extent specified in Schedule II, the Company
will promptly after the date hereof, in the event it has not already
done so, file an application for the listing of the Offered Securities
on the securities exchange or exchanges specified in said Schedule II
and will use its best efforts to cause such Offered Securities to be
duly authorized for listing thereon, subject to official notice of
issuance, and to be registered under the 1934 Act.
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4. Conditions to the Obligations of the Underwriters. Except
as otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Securities pursuant to this Agreement shall be
subject to the accuracy of and compliance with the representations and
warranties of the Company contained herein as of the date hereof and the Closing
Time, to the accuracy of the statements of the Company's officers made in any
certificates furnished pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder and to the
following additional conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statements shall have been issued
under the 1933 Act and no proceedings therefor shall have been
instituted or threatened by the Commission.
(b) At the Closing Time, you shall have received:
(1) An opinion, dated the Closing Time, of Anne H.
McNamara, Senior Vice President and General Counsel of the
Company, in form reasonably satisfactory to you and your
counsel, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware and
has full corporate power and authority under such
laws to own its properties and to conduct its
business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in the state in which
its principal place of business is located;
(ii) Each of American, AMR Eagle Holding
Corporation and The SABRE Group Holdings, Inc. has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is incorporated and has full
corporate power and authority under such laws to own
its properties and to conduct its business as
described in the Prospectus; and all of the issued
and outstanding shares of capital stock of each such
subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable and
(except for the SABRE Group Holdings, Inc.,
approximately 82% of which is owned by the Company)
are owned by the Company, directly or through
subsidiaries, free and clear of any liens,
encumbrances, equities or claims; and American is an
"air carrier" and a "citizen of the United States"
within the meaning of the Aviation Act;
(iii) The Designated Indenture has been duly
authorized, executed and delivered by the Company and
constitutes the valid and
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binding obligation of the Company enforceable in
accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of
creditors' rights generally and by general principles
of equity; and the Indenture has been duly qualified
under the 1939 Act;
(iv) The Offered Securities have been duly
authorized by the Company and, assuming valid
authentication by the Trustee pursuant to the
Designated Indenture, have been duly issued and
delivered by the Company and constitute valid and
binding obligations of the Company enforceable in
accordance with their terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of
creditors' rights generally and by general principles
of equity; and the holders thereof will be entitled
to the benefits of the Designated Indenture;
(v) The Offered Securities and the
Designated Indenture conform in all material respects
to the descriptions thereof contained in the
Prospectus, and such descriptions conform in all
material respects to the rights set forth in the
instruments defining the same;
(vi) No authorization, approval, consent or
license of any regulatory body or authority is
required for the valid authorization, issuance and
delivery of the Offered Securities by the Company,
except such as have been obtained under the 1933 Act
and the 1939 Act and such as may be required under
the securities or Blue Sky laws of the various
states;
(vii) The Registration Statements have
become effective under the 1933 Act and, to the best
knowledge of such counsel, no stop order suspending
the effectiveness of such Registration Statements has
been issued and no proceedings for that purpose have
been instituted or threatened;
(viii) The Registration Statements, the
Prospectus and each amendment thereof or supplement
thereto (except for the financial statements and
related schedules and other financial data included
or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to
form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations; the
Indenture and the Statement of Eligibility of the
Trustee on Form T-1 filed with the Commission as part
of the Registration Statements comply as to form in
all
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material respects with the requirements of the 1939
Act and the 1939 Act Regulations; and each document
filed pursuant to the 1934 Act and incorporated by
reference in the Prospectus (except for the financial
statements and related schedules and other financial
data included or incorporated by reference therein,
as to which such counsel need express no opinion)
appeared on its face, as of its respective filing
date, to comply as to form in all material respects
with the requirements of the 1934 Act and the rules
and regulations thereunder;
(ix) This Agreement has been duly
authorized, executed and delivered by the Company;
(x) The issuance and delivery by the Company
of the Offered Securities, the execution and delivery
by the Company of this Agreement and the Designated
Indenture, the consummation by the Company of the
transactions herein and therein contemplated and in
the manner herein and therein contemplated, and
compliance by the Company with the terms of this
Agreement and the Designated Indenture do not and
will not conflict with, or result in a breach of, any
of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation or
By-Laws, as amended, of the Company or American or
any of their subsidiaries or any indenture or other
agreement or instrument known to such counsel to
which the Company or American or any of their
subsidiaries is a party or by which the Company or
American or any of their subsidiaries is bound or any
law, rule, regulation, judgment or order known to
such counsel to be applicable to the Company or
American or any of their subsidiaries of any court,
regulatory body, administrative agency, government or
governmental body having jurisdiction over the
Company or American or any of their subsidiaries;
(xi) If the Offered Securities are specified
in Schedule II as securities to be listed on a
securities exchange or exchanges prior to the Closing
Time, the Offered Securities are duly authorized for
listing, subject to official notice of issuance, on
the securities exchange or exchanges specified in
said Schedule II;
(xii) To the best knowledge of such counsel,
no holder of securities of the Company or American
has a right to the registration of such securities
under the Registration Statements;
(xiii) Such counsel has no reason to believe
that the statements in the Registration Statements
and the Prospectus with respect to statutes,
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11
administrative orders and regulations and legal and
governmental proceedings do not fairly and accurately
present in all material respects the information
required to be set forth therein; and there are, to
the best of such counsel's knowledge, no statutes,
administrative orders or regulations or legal or
governmental proceedings required to be described in
the Registration Statements or the Prospectus which
are not described as required, nor any contracts or
documents of a character required to be described in
the Registration Statements or the Prospectus, or to
be filed as exhibits to the Registration Statements,
that are not so described or filed as required; and
(xiv) The statements in the Prospectus as to
the routes that American operates or is authorized to
operate are correct in all material respects and the
routes presently operated are being operated pursuant
to valid Certificates or Exemption Orders issued by
the Department of Transportation or its predecessor,
the Civil Aeronautics Board, and no such Certificate
or Exemption Order is the subject of any "show cause"
or other order of, or any proceeding before, or any
investigation by, the Department of Transportation
(other than proceedings for the renewal of temporary
rights,) which in the opinion of such counsel might
reasonably result in a final order impairing the
validity of such Certificates or Exemption Orders,
except that such counsel need express no opinion or
belief as to the accuracy or completeness of the
Registration Statements or the Prospectus except for
the opinions expressed in paragraphs (v) and (xiii)
and this paragraph (xiv) and, to the extent stated
therein, the disclosure matters referred to in the
immediately following sentence;
and to such further effect with respect to other legal matters
relating to this Agreement, the Designated Indenture and the
sale of the Offered Securities hereunder as your counsel may
reasonably request. Such counsel shall also state that no
facts have come to the attention of such counsel which have
caused such counsel to believe (A) that the Registration
Statements or any amendment thereto (except for the financial
statements and other financial and statistical data included
or incorporated by reference therein, and except for the
Statement of Eligibility on Form T-1 of the Trustee under the
1939 Act, as to which such counsel need express no belief), on
the original effective date thereof, on the effective date of
any post-effective amendment thereto, if any, or on the date
of the filing by the Company of its most recent Annual Report
on Form 10-K after the filing of the Registration Statements,
contained an untrue statement of a material fact or
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12
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
(B) that the Prospectus or the Prospectus together with any
amendment or supplement thereto (except for the financial
statements and other financial and statistical data included
or incorporated by reference therein, as to which such counsel
need express no belief), at the time the Prospectus Supplement
was issued, at the time any such amended or supplemented
Prospectus was issued or at the Closing Time, contained or
contains an untrue statement of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In
giving such opinion, such counsel may state that such opinion
is limited to the laws of the States of New York and Texas,
the corporate laws of the State of Delaware and the Federal
laws of the United States, except that such counsel expresses
no opinion as to the securities laws of any state. In
rendering the opinions set forth above, such counsel may rely
upon certificates of public officials as to matters of fact.
(2) An opinion, dated the Closing Time, from Shearman
& Sterling, your counsel, to the effect that the opinion
delivered pursuant to subsection (b)(1) of this Section 4
appears on its face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to
the extent waived by you and with respect to the issuance and
sale of the Offered Securities, the Registration Statements,
the Prospectus and such other related matters as you may
reasonably require.
(c) (1) At the Closing Time, there shall not have been, since
the respective dates as of which information is given in Registration
Statement File No. 333-68211 and the Prospectus, any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and you shall have received a certificate of the
President, an Executive Vice President, a Senior Vice President or a
Vice President of the Company, dated as of such Closing Time, to the
effect that the representations and warranties of the Company contained
in Section 1 hereof are true and correct with the same force and effect
as though made on such Closing Time.
(2) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Time, neither Standard & Poor's
Corporation nor Moody's Investors Service, Inc. shall have downgraded
its rating accorded to any of the Company's senior unsecured taxable
debt securities with maturities greater than one year.
(d) You shall have received the letter specified in Schedule
III at the Closing Time.
<PAGE> 14
13
(e) The Company shall have furnished to you and your counsel,
in form and substance satisfactory to them, such other documents,
certificates and opinions as such counsel may reasonably request for
the purpose of enabling such counsel to pass upon the matters referred
to in subsection (b)(2) of this Section 4 and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements, the performance of any covenant by the Company theretofore
to be performed, or the compliance with any of the conditions herein
contained.
(f) If the Offered Securities are specified in Schedule II as
securities to be listed on a securities exchange or exchanges prior to
the Closing Time, the Offered Securities shall have been duly
authorized for listing by the securities exchange or exchanges
specified in said Schedule II, subject only to official notice of
issuance.
All such opinions, certificates, letters and documents shall
be deemed to be in compliance with provisions hereof only if they are in all
respects reasonably satisfactory to you and your counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, other than by reason of any
default by the Underwriters, such failure to fulfill a condition may be waived
by you, or this Agreement may be terminated by you by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Sections 5, 6
and 8 hereof, which provisions shall remain in effect notwithstanding such
termination.
5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing, filing and distribution of any preliminary
prospectus supplements, the Prospectus, the Registration Statements and any
amendments thereof or supplements thereto, (ii) the preparation, printing, and
distribution of any agreement among underwriters, this Agreement, the Designated
Indenture, the Offered Securities, the Blue Sky Survey, any Legal Investment
Survey and any Underwriters' questionnaire, (iii) the issuance and delivery of
the Offered Securities to the Underwriters, (iv) the fees and disbursements of
the Company's counsel and accountants, (v) the expenses of qualifying the
Offered Securities under state securities laws in accordance with Section 3(f),
including filing fees and fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the Blue Sky Survey and any Legal
Investment Survey, (vi) any fees charged by rating agencies for rating the
Offered Securities, (vii) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee, and
(viii) the fees and expenses, if any, incurred in connection with the listing of
the Offered Securities on any securities exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or 9(i) hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket
<PAGE> 15
14
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters, in connection with the offering contemplated by this Agreement.
6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of the 1933 Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act, or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statements as originally filed or in any amendment
thereof, or in any preliminary prospectus or the Prospectus, or in any amendment
thereof, or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon, and in conformity with, written information furnished
to the Company by or on behalf of any Underwriter specifically for use in
connection with the preparation thereof or made in the part of the Registration
Statements constituting the Statement of Eligibility under the 1939 Act of the
Trustee on Form T-1, (ii) the foregoing indemnity agreement, with respect to any
preliminary prospectus, shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) as to whom it shall be established did
not send or deliver to the person asserting any such loss, claim, damage or
liability and who purchased Offered Securities which are the subject thereof a
copy of the Prospectus as amended or supplemented at or prior to the written
confirmation of the sale of such Offered Securities in any case where such
delivery is required by the 1933 Act, and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus as amended or supplemented, and (iii) the Company will not be liable
for any loss, liability or expense of any settlement of any pending or
threatened litigation or any pending or threatened governmental agency
investigation or proceeding if such settlement is effected without the prior
written consent of the Company. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statements, and each person who controls the Company within the
meaning of the 1933 Act, against any and all losses, claims, damages,
liabilities and expenses described in the indemnity contained in Section 6(a),
but only with respect to untrue statements or alleged untrue statements or
omissions or alleged omissions made in such Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with
<PAGE> 16
15
written information furnished to the Company by or on behalf of any Underwriter
specifically for use in such Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party or parties in writing of the
commencement thereof; but the omission so to notify the indemnifying party or
parties will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 6. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
or parties of the commencement thereof, the indemnifying party or parties will
be entitled to participate therein, and, to the extent that it may elect, by
written notice delivered to such indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that if,
in the reasonable judgement of such indemnified party, a conflict of interest
exists where it is advisable for such indemnified party to be represented by
separate counsel, the indemnified party shall have the right to employ separate
counsel in any such action, in which event the fees and expenses of such
separate counsel shall be borne by the indemnifying party or parties. Upon
receipt of notice from the indemnifying party or parties to such indemnified
party of the election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party or parties will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party or parties shall not be liable
for the expenses of more than one such separate counsel representing the
indemnified parties under subparagraph (a) of this Section 6 who are parties to
such action), (ii) the indemnifying party or parties shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or parties; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). It is
understood that all such fees and expenses of counsel for the indemnified party
for which the indemnifying party is liable shall be reimbursed as they are
incurred. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
<PAGE> 17
16
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Offered Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
proceeds from the offering of the Offered Securities pursuant to this Agreement
(net of compensation paid to the Underwriters but before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the Offered
Securities as set forth on such cover. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any such
action or claim. Notwithstanding the provisions of this Section, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statements, and each person, if any, who controls
the Company
<PAGE> 18
17
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Offered Securities set forth opposite
their respective names in Schedule I hereto and not joint.
7. Default. If any one or more Underwriters shall fail to
purchase and pay for any of the Offered Securities agreed to be purchased by
such Underwriter or Underwriters pursuant to this Agreement and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate amount of Offered Securities specified to be purchased by them in
Schedule I bears to the aggregate amount of Offered Securities to be purchased
by all the remaining Underwriters) the Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Offered Securities to be purchased
pursuant to this Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of such
Offered Securities, and if such non-defaulting Underwriters do not purchase all
such Offered Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company. In the event of any such termination,
the provisions of Sections 5, 6 and 8 shall remain in effect. In the event of a
default by any Underwriter as set forth in this Section 7, the Closing Time
shall be postponed for such period, not exceeding seven days, as the
Underwriters shall determine in order that the required changes in the
Registration Statements and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and to any
non-defaulting Underwriter for damages occasioned by its default hereunder.
8. Representations, Warranties, Indemnities and Agreements to
Survive Delivery. All representations, warranties, indemnities and agreements
contained in this agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any Underwriter or controlling person and shall survive delivery of any Offered
Securities to the Underwriters.
9. Termination. This Agreement may be terminated immediately
upon notice from you to the Company at any time at or prior to the Closing Time
(i) if there has been, since the respective dates as of which information is
given in the Registration Statements and the Prospectus, any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of
<PAGE> 19
18
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Offered Securities or enforce contracts for the sale
of the Offered Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchange or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of such
termination, the provisions of Sections 5, 6 and 8 shall remain in effect.
10. Notices. All notices and other communications hereunder
shall be in writing and effective only upon receipt, and, if sent to
Underwriters, will be mailed or transmitted by any standard form of
telecommunications to the Underwriters as set forth in Schedule I or, if sent to
the Company, will be mailed or transmitted by any standard form of
telecommunications to it at P.O. Box 619616, Dallas/Fort Worth International
Airport, Texas 75261-9616, attention of the Treasurer.
11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and their successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their successors, heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
13. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party hereto
all such counterparts taken together shall constitute one and the same
agreement.
<PAGE> 20
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
AMR CORPORATION
By:
--------------------------------
Name:
Title:
<PAGE> 21
Confirmed and accepted as of
the date first above written:
GOLDMAN, SACHS & CO.
as Representative acting on
behalf of the Underwriters
named in Schedule I hereto
By:
------------------------------------
(Goldman, Sachs & Co.)
SALOMON SMITH BARNEY INC.
By:
------------------------------------
Name:
Title:
<PAGE> 22
SCHEDULE I
to
Underwriting
Agreement
Dated: July 7, 1999
AMR CORPORATION
<TABLE>
<CAPTION>
Principal
amount of
PINES
--------------
<S> <C>
Goldman, Sachs & Co., Joint Book-Running Manager ........... $ 19,625,000
Salomon Smith Barney Inc., Joint Book-Running Manager ...... 19,625,000
Morgan Stanley & Co. Incorporated ......................... 19,500,000
PaineWebber Incorporated ................................... 19,500,000
Prudential Securities Incorporated ......................... 19,500,000
Credit Suisse First Boston Corporation ..................... 5,000,000
Bear, Stearns & Co. Inc. ................................... 1,750,000
CIBC World Markets Corp. ................................... 1,750,000
Charles Schwab & Co., Inc. ................................. 1,750,000
Chase Securities Inc. ...................................... 1,750,000
Dain Rauscher Wessels
a division of Dain Rauscher Incorporated .............. 1,750,000
Deutsche Bank Securities Inc. .............................. 1,750,000
Donaldson, Lufkin & Jenrette Securities Corporation ........ 1,750,000
A.G. Edwards & Sons, Inc. .................................. 1,750,000
EVEREN Securities, Inc. .................................... 1,750,000
National Financial Services Corporation .................... 1,750,000
The Robinson-Humphrey Company, LLC ......................... 1,750,000
</TABLE>
<PAGE> 23
2
<TABLE>
<S> <C>
SG Cowen Securities Corporation ............................ 1,750,000
Warburg Dillon Read LLC, ................................... 1,750,000
ABN AMRO Incorporated ...................................... 875,000
Advest, Inc. ............................................... 875,000
BB&T Capital Markets ....................................... 875,000
Robert W. Baird & Co. Incorporated ........................ 875,000
Banc of America Securities LLC ............................. 875,000
M.R. Beal & Company ........................................ 875,000
J.C. Bradford & Co. ........................................ 875,000
Crowell, Weedon & Co. ...................................... 875,000
Fahnestock & Co. Inc. ...................................... 875,000
Fifth Third Securities, Inc. ............................... 875,000
First Union Capital Markets Corp. .......................... 875,000
Guzman & Company ........................................... 875,000
J.J.B. Hilliard, W.L. Lyons, Inc. .......................... 875,000
Janney Montgomery Scott Inc. ............................... 875,000
Legg Mason Wood Walker, Incorporated ....................... 875,000
McDonald Investments Inc., A KeyCorp Company ............... 875,000
McGinn, Smith & Co, Inc. ................................... 875,000
Morgan Keegan & Company, Inc. .............................. 875,000
Olde Discount Corporation .................................. 875,000
Raymond James & Associates, Inc. ........................... 875,000
RONEY CAPITAL MARKETS
A division of BANC ONE CAPITAL MARKETS, Inc. ........... 875,000
Southwest Securities, Inc. ................................. 875,000
Sutro & Co. Incorporated ................................... 875,000
</TABLE>
<PAGE> 24
3
<TABLE>
<S> <C>
TD Securities (USA) Inc. ................................... 875,000
Tucker Anthony Cleary Gull ................................. 875,000
U.S. Bancorp Piper Jaffray Inc. ............................ 875,000
Wachovia Securities, Inc. .................................. 875,000
Wedbush Morgan Securities .................................. 875,000
------------
$150,000,000
============
</TABLE>
<PAGE> 25
SCHEDULE II
to
Underwriting
Agreement
Dated: July 7, 1999
AMR CORPORATION
A. General
Closing date, time and location: July 13, 1999, 10:00 AM
at Shearman & Sterling
Underwriting fees, commissions or other compensation: 3.15%
of the aggregate principal amount
Other terms and conditions:
B. Terms of Offered Securities:
Title of Offered Securities: 7.875% Public Income NotES
due 2039 ("PINES")
Principal amount to be issued: $150,000,000
Currency or currency units of Offered Securities:
Interest rate or method of calculating interest: 7.875%
Dates interest payable: January 31, April 30, July 31, and
October 31
Date of maturity: July 13, 2039
Redemption provisions: The PINES will be redeemable at the
option of the Company, in whole or in part, at any
time on or after July 13, 2004, upon not less than
30 nor more than 60 days' notice, at a redemption
price equal to 100% of the principal amount redeemed
plus accrued and unpaid interest to the redemption
date.
Sinking fund requirements: None
<PAGE> 26
2
Initial public offering price: 100% of the principal
amount plus accrued interest from July 13, 1999.
Purchase price: 96.85% of the principal amount plus accrued
interest from July 13, 1999.
Listing requirement: The Company intends to list the PINES
on the New York Stock Exchange and expects trading
in the PINES to begin within 30 days after the
original issue date.
Other terms and conditions: If the Underwriters sell more
PINES than the total number set forth in the table
in Schedule I attached hereto, the Underwriters have
an option to buy up to an additional $22,500,000
principal amount of PINES from the Company at the
initial public offering price (plus accrued interest
from July 13, 1999) less the underwriting discount
to cover such sales. The Underwriters may exercise
that option for 30 days from the date hereof. If any
PINES are purchased pursuant to this option, the
Underwriters will severally purchase the PINES in
approximately the same proportion as set forth in
the table in Schedule I attached hereto.
<PAGE> 27
SCHEDULE III
to Underwriting Agreement
Dated: ________________
AMR CORPORATION
Matters to be Covered by Letter or Letters of
Independent Auditors
Ernst & Young LLP shall have furnished to you the following
letter, dated the Closing Time, in form and substance satisfactory to you, to
the effect that:
(i) They are independent auditors with respect to the
Company within the meaning of the 1933 Act and the Rules and
Regulations, and the answer to Item 10 of the Registration
Statements insofar as it relates to them is none;
(ii) In their opinion, the audited consolidated
financial statements and schedule incorporated by reference in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the 1934 Act and the published rules and
regulations thereunder with respect to registration statements
on Form S-3;
(iii) On the basis of a reading of the unaudited
consolidated financial statements of the Company contained in
the Company's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1999 incorporated by reference in Registration
Statement File No. 333-68211, a reading of the latest
unaudited consolidated financial statements made available by
the Company, a reading of the minutes of the Board of
Directors of the Company and American and any committees
thereof and the stockholders of the Company and the sole
stockholder of American since the date of the latest audited
consolidated financial statements incorporated by reference in
Registration Statement File No. 333-68211, inquiries of
officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, which do not constitute an
audit in accordance with generally accepted auditing standards
and which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited consolidated financial
statements incorporated by reference in Registration
Statement File No. 333-68211 do not comply as to form
in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934
Act and the rules and regulations thereunder as they
apply to Form 10-Q or are not presented
<PAGE> 28
2
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements of the Company incorporated by
reference in the Registration Statements;
(B) as of a specified date not more than six
calendar days prior to the date of delivery of such
letter, there has been any change in the consolidated
capital stock or consolidated long-term debt of the
Company, or any decrease in consolidated net current
assets or consolidated stockholders' equity of the
Company or other items specified by you, in each case
as compared with amounts shown in the latest
consolidated balance sheet of the Company
incorporated by reference in Registration Statement
File No. 333-68211, except in each case for changes
or decreases which the Registration Statements
disclose have occurred or may occur or which are
described in such letter; and
(C) for the period from the date of the
latest consolidated financial statements of the
Company incorporated by reference in Registration
Statement File No. 333-68211 to a specified date not
more than six calendar days prior to the date of
delivery of such letter, there were any decreases in
consolidated total operating revenues, consolidated
operating income or consolidated net earnings or
basic or diluted per common share amounts of
consolidated net earnings of the Company, in each
case as compared with the comparable period of the
preceding year and with any other period of
corresponding length reasonably specified by you,
except in each case for decreases which the
Registration Statements disclose have occurred or may
occur or which are described in such letter; and
(iv) They have performed certain procedures specified
in their letter for the purpose of determining whether certain
financial information with respect to the Company and its
consolidated subsidiaries appearing or incorporated by
reference in the Registration Statements and specified in said
letter agrees with indicated amounts in the applicable
financial statements or accounting records of the Company and
its subsidiaries.
<PAGE> 1
EXHIBIT 4(a)
INDENTURE
between
AMR CORPORATION
and
CITIBANK, N.A.
Dated as of December 1, 1998
Providing for Issuance of
Debt Securities in Series
<PAGE> 2
Reconciliation and tie between Indenture, dated as of December 1, 1998, and the
Trust Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 section Section
- ------------------- ---------
<S> <C> <C>
310(a) (1) 6.11
(a) (2) 6.11
(a) (3) TIA
(a) (4) Not applicable
(a) (5) TIA
(b) 6.9; 6.11; TIA
311(a) TIA
(b) TIA
312(a) 6.7
(b) TIA
(c) TIA
313(a) 6.6; TIA
(b) TIA
(c) 6.6; TIA
(d) 6.6
314(a) 9.6; 9.7; TIA
(b) Not Applicable
(c) (l) 1.2
(c) (2) 1.2
(c) (3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) TIA
315(a) TIA
(b) 6.5
(c) 6.1
(d) (1) TIA
(d) (2) TIA
(d) (3) TIA
(e) TIA
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
316(a)(last sentence) 1.1
(a)(l)(A) 5.8
(a)(1)(B) 5.7
(b) 5.2; 5.10
(c) TIA
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(b) TIA
(c) 1.11; TIA
</TABLE>
This reconciliation and tie section does not constitute part of the
Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION...................................................................................l
1.1 Definitions.....................................................................................l
1.2 Compliance Certificates and
Opinions......................................................................................9
1.3 Form of Documents Delivered
to Trustee....................................................................................9
1.4 Acts of Holders................................................................................10
1.5 Notices, etc., to Trustee
and Company..................................................................................12
1.6 Notice to Holders; Waiver......................................................................12
1.7 Headings and Table of Contents ................................................................13
1.8 Successor and Assigns..........................................................................13
1.9 Separability...................................................................................14
1.10 Benefits of Indenture..........................................................................14
1.11 Governing Law..................................................................................14
1.12 Legal Holidays.................................................................................14
1.13 No Recourse Against Others.....................................................................14
ARTICLE II SECURITY FORMS........................................................................................15
2.1 Forms Generally................................................................................15
2.2 Form of Trustee's Certificate
of Authentication............................................................................15
2.3 Securities in Global Form......................................................................16
2.4 Form of Legend for Securities
in Global Form...............................................................................16
ARTICLE III THE SECURITIES.......................................................................................17
3.1 Amount Unlimited; Issuable
in Series....................................................................................17
3.2 Denominations..................................................................................21
3.3 Execution, Authentication,
Delivery and Dating..........................................................................21
3.4 Temporary Securities...........................................................................24
3.5 Registration, Transfer
and Exchange.................................................................................25
3.6 Replacement Securities.........................................................................28
</TABLE>
i
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C> <C>
3.7 Payment of Interest; Interest
Rights Preserved.............................................................................30
3.8 Persons Deemed Owners..........................................................................31
3.9 Cancellation...................................................................................32
3.10 Computation of Interest........................................................................32
3.11 Currency and Manner of Payment
in Respect of Securities.....................................................................32
3.12 Appointment and Resignation of
Exchange Rate Agent..........................................................................38
3.13 CUSIP Numbers..................................................................................38
ARTICLE IV SATISFACTION, DISCHARGE
AND DEFEASANCE..........................................................................................39
4.1 Termination of Company's Obligations
Under the Indenture..........................................................................39
4.2 Application of Trust Funds ....................................................................40
4.3 Applicability of Defeasance
Provisions; Company's Option to
Effect Defeasance or Covenant
Defeasance...................................................................................40
4.4 Defeasance and Discharge.......................................................................41
4.5 Covenant Defeasance............................................................................41
4.6 Conditions to Defeasance or
Covenant Defeasance..........................................................................42
4.7 Deposited Money and Government
Obligations to Be Held in Trust..............................................................44
4.8 Repayment to Company...........................................................................44
4.9 Indemnity for Government
Obligations..................................................................................44
ARTICLE V DEFAULTS AND REMEDIES..................................................................................45
5.1 Events of Default..............................................................................45
5.2 Acceleration; Rescission and
Annulment....................................................................................46
5.3 Collection of Indebtedness
and Suits for Enforcement
by Trustee...................................................................................47
5.4 Trustee May File Proofs
of Claim......................................................................................48
5.5 Trustee May Enforce Claims
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Without Possession of Securities.............................................................48
5.6 Delay or Omission Not Waiver...................................................................48
5.7 Waiver of Past Defaults........................................................................48
5.8 Control by Majority............................................................................48
5.9 Limitation on Suits by
Holders.......................................................................................48
5.10 Rights of Holders to Receive
Payment......................................................................................49
5.11 Application of Money Collected.................................................................49
5.12 Restoration of Rights and
Remedies.....................................................................................50
5.13 Rights and Remedies Cumulative.................................................................50
5.14 Waiver of Stay, Extension or Usury Laws........................................................50
ARTICLE VI THE TRUSTEE...........................................................................................51
6.1 Rights of Trustee..............................................................................51
6.2 Trustee May Hold Securities....................................................................52
6.3 Money Held in Trust............................................................................52
6.4 Trustee's Disclaimer...........................................................................52
6.5 Notice of Defaults.............................................................................52
6.6 Reports by Trustee to Holders..................................................................52
6.7 Security Holder Lists..........................................................................53
6.8 Compensation and Indemnity.....................................................................53
6.9 Replacement of Trustee.........................................................................54
6.10 Acceptance of Appointment
by Successor.................................................................................55
6.11 Eligibility; Disqualification..................................................................57
6.12 Merger, Conversion, Consolidation
or Succession to Business....................................................................57
6.13 Appointment of Authenticating
Agent........................................................................................57
ARTICLE VII CONSOLIDATION, MERGER OR SALE BY THE COMPANY.........................................................59
7.1 Consolidation, Merger or Sale
of Assets Permitted..........................................................................59
ARTICLE VIII SUPPLEMENTAL INDENTURES.............................................................................60
8.1 Supplemental Indentures Without
Consent of Holders...........................................................................60
</TABLE>
iii
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C> <C>
8.2 With Consent of Holders........................................................................61
8.3 Compliance with Trust Indenture Act............................................................62
8.4 Execution of Supplemental
Indentures...................................................................................62
8.5 Effect of Supplemental
Indentures...................................................................................63
8.6 Reference in Securities to
Supplemental Indentures......................................................................63
ARTICLE IX COVENANTS.............................................................................................63
9.1 Payment of Principal, Premium,
if any, and Interest.........................................................................63
9.2 Maintenance of Office or Agency ...............................................................63
9.3 Money for Securities to Be
Held in Trust; Unclaimed Money ..............................................................65
9.4 Corporate Existence............................................................................66
9.5 Insurance......................................................................................66
9.6 Reports by the Company.........................................................................66
9.7 Annual Review Certificate......................................................................67
9.8 Calculation of Original Issue Discount.........................................................67
ARTICLE X REDEMPTION.............................................................................................67
10.1 Applicability of Article.......................................................................67
10.2 Election to Redeem; Notice
to Trustee...................................................................................67
10.3 Selection of Securities to
Be Redeemed..................................................................................68
10.4 Notice of Redemption...........................................................................68
10.5 Deposit of Redemption Price....................................................................69
10.6 Securities Payable on Redemption
Date.........................................................................................70
10.7 Securities Redeemed in Part....................................................................70
ARTICLE XI SINKING FUNDS.........................................................................................71
11.1 Applicability of Article.......................................................................71
11.2 Satisfaction of Sinking
Fund Payments with
Securities...................................................................................71
11.3 Redemption of Securities for
Sinking Fund.................................................................................71
SIGNATURES.......................................................................................................73
</TABLE>
iv
<PAGE> 8
INDENTURE, dated as of December 1, 1998, between AMR
CORPORATION, a Delaware corporation (the "Company"), and CITIBANK, N.A.,
Trustee, a national banking association organized and existing under the laws of
the United States of America (the "Trustee").
Recitals
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly
or indirectly controlling
1
<PAGE> 9
or controlled by, or under direct or indirect common control with, such
specified Person. For purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.13.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holiday. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which
is payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, the Executive Committee or any other duly authorized committee
thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Corporate 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 the certificate, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter means such
successors.
2
<PAGE> 10
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by the Chairman of
the Board, the Vice Chairman of the Board of Directors, the President, any
Executive Vice President or any Senior Vice President, signing alone, or by any
Vice President signing together with the Treasurer, any Assistant Treasurer, the
Corporate Secretary or any Assistant Secretary of the Company.
"Corporate Trust Office" means the office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
111 Wall Street, 5th Floor, New York, N.Y. 10043, Attention:
Global Agency & Trust Services.
"currency unit", for all purposes of this Indenture, shall
include any composite currency.
"Default" means any event which is, or after notice or
passage of time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depositary by the Company pursuant to Section 3.1 until
a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United
States as at the time of payment is legal tender for the payment of public and
private debts.
"Government Obligations" means securities which are (i)
direct obligations of the United States or, if specified as contemplated by
Section 3.1, the government which issued the currency in which the Securities of
a particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of such series are payable, for the payment of
which the full faith and credit of the United States or such other government is
pledged (whether by guaranty or otherwise), which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depositary receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depositary
receipt.
3
<PAGE> 11
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of a coupon appertaining thereto and, with respect to a Registered
Security, a person in whose name such Registered Security is registered on the
Register.
"Indenture" means this Indenture as originally executed or as
amended or supplemented from time to time and shall include the forms and terms
of particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity may be more
or less than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board of Directors, the
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Treasurer or the Corporate Secretary of the Company.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, any Executive Vice President or any Senior
Vice President, signing alone, or by any Vice President signing together with
the Corporate Secretary, any Assistant Secretary, the Treasurer, or any
Assistant Treasurer of the Company.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be (a) the senior attorney employed by the Company, (b)
Debevoise & Plimpton or (c) other counsel designated by the Company and who
shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
4
<PAGE> 12
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or Government Obligations 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 provisions
therefor satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article IV; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that unless otherwise provided with respect to any Securities
of any series pursuant to Section 3.1, in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other purpose,
and for the purpose of making the calculations required by section 313 of the
Trust Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent, determined as of such date of original issuance, of the amount
determined as provided in clause (w) above) of such Security, (y) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, and (z) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in
5
<PAGE> 13
making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest and any other payments on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Maturity thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Company upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, and interest and any other payments on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1, which date shall be,
unless otherwise specified pursuant to Section 3.1, the fifteenth day
6
<PAGE> 14
preceding such Interest Payment Date, whether or not such day shall be a
Business Day.
"Responsible Officer", when used with respect to the Trustee,
shall mean any Vice President, any Assistant Vice President, any Senior Trust
Officer or Assistant Trust Officer, or any officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means a Security or
Securities of the Company issued, authenticated and delivered under this
Indenture.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any Person of which the Company at the
time owns or controls, directly or indirectly, more than 50% of the shares of
outstanding stock or other equity interests having general voting power under
ordinary circumstances to elect a majority of the Board of Directors, managers
or trustees, as the case may be, of such Person (irrespective of whether or not
at the time stock of any other class or classes or other equity interests of
such corporation shall have or might have voting power by reason of the
happening of any contingency).
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor Trustee replaces it pursuant to
the applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with
respect to the Securities of any series as contemplated by Section 3.1, the
United States of America (including the States and
7
<PAGE> 15
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, an individual
citizen or resident of the United States, a corporation created or organized in
or under the laws of the United States, any State thereof or the District of
Columbia, or a partnership, estate or trust treated as a domestic partnership,
estate or trust for United States federal income tax purposes.
"Yield to Maturity" means the yield to maturity, calculated
by the Company at the time of issuance of a series of Securities or, if
applicable, at the most recent determination of interest on such series, in
accordance with accepted financial practice.
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Act" 1.4 (a)
"Bankruptcy Law" 5.1
"Claims" 6.8(b)
"Component Currency" 3.11(h)
"Conversion Date" 3.11(d)
"Conversion Event" 3.11(h)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.11(h)
"Event of Default" 5.1
"Exchange Rate Agent" 3.11(h)
"Exchange Rate Officer's
Certificate" 3.11(h)
"Foreign Currency" 3.11(h)
"Market Exchange Rate" 3.11(h)
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.11(c)
</TABLE>
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
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
8
<PAGE> 16
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations as to such
matters are erroneous.
Any certificate or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinions or representations as to such accounting matters are
erroneous.
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(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 ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another such certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (ii) such
Bearer Security is produced to the Trustee by some other Person, (iii) such
Bearer Security is surrendered in exchange for a Registered Security or (iv)
such Bearer Security is no longer outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
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(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) If the Company shall solicit from the Holders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, fix in advance a record date for the
determination of Holders of such series entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of such series of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities of such series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities of such
series shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless taken on or prior to the applicable Expiration Date (as
defined below) by Holders of the requisite amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Notes in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section
1.4, the Company may designate any date as the "Expiration Date" and from time
to time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Trustee, and to each Holder of Securities of the
applicable series in the manner set forth in Section 1.6 on or prior to the
existing Expiration Date. If an Expiration Date is not designated with respect
to any record date pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the
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principal amount of such Security or by one or more duly appointed agents, each
of which may do so pursuant to such appointment with regard to all or any part
of such principal amount.
(h) The Company and the Trustee may make reasonable rules for
action by or at a meeting of Holders.
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: Global Agency & Trust Services, 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 AMR Corporation, P.O. Box
619616, Dallas/Fort Worth Airport, Texas 75261-9616 or at any other
address previously furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Securities expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Register, within the time prescribed for the giving of such
notice and, (ii) if any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be sufficiently given (unless
otherwise herein or in the terms of such Bearer Securities expressly provided)
if published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified as contemplated by Section
3.1.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause
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it shall be impracticable to give such notice as provided above, then such
notification as shall be made with the approval of the Trustee (such approval
not to be unreasonably withheld) shall constitute a sufficient notification for
every purpose hereunder. If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner herein required,
then such publication in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successor and
assigns, whether so expressed or not.
Any act or proceeding that is required or permitted by any
provision of this Indenture and that is authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the successor or assign of
the Company.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this
Indenture or in the Securities, expressed or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, any Agent and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES
AND ANY COUPONS APPERTAINING THERETO SHALL
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BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. This
Indenture is subject to the Trust Indenture Act and if any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required by the Trust Indenture Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified, or to be excluded, as the case may be, whether or
not such provision of this Indenture refers expressly to such provision of the
Trust Indenture Act.
Section 1.12. Legal Holidays. Unless otherwise provided with
respect to any Security or Securities pursuant to Section 3.1, in any case where
any Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity or other payment date of any Security shall not be a
Business Day at any Place of Payment, then, notwithstanding any other provision
of this Indenture or any Security or coupon, payment of principal, premium, if
any or interest or other payments need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such date; provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity or other payment date, as the case may be.
Section 1.13. No Recourse Against Others. No past, present or
future director, officer, employee, agent, member, manager, trustee or
stockholder, as such, of the Company or any successor Person shall have any
liability for any obligations of the Company or any successor Person, either
directly or through the Company or any successor Person, under the Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation, whether by virtue of any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise. By accepting a Security, each Holder
agrees to the provisions of this Section 1.13 and waives and releases all such
liability. Such waiver and release shall be part of the consideration for the
issue of the Securities.
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally. The Securities of each series
and the coupons, if any, to be attached thereto shall be in substantially such
form 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 any applicable law, rule or
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regulation or with the rules or usage of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities and coupons, if any, as evidenced by their execution
of the Securities and coupons, if any. If temporary Securities of any series are
issued as permitted by Section 3.4, the form thereof also shall be established
as provided in the preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by, or by action taken pursuant to, a
Board Resolution, a copy of the Board Resolution together with an appropriate
record of any such action taken pursuant thereto, including a copy of the
approved form of Securities or coupons, if any, shall be certified by the
Corporate Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
typeset, printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner or medium, all as determined by the officers
executing such Securities and coupons, if any, as evidenced by their execution
of such Securities and coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
Subject to Section 6.13, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein
and issued under the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
Dated: By
------------------------- -----------------------------------
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made in such manner and by such Person
or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of
Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and
redeliver any security in permanent global form in the manner and upon
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instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last sentence of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Section 2.4. Form of Legend for Securities in Global Form.
Unless otherwise provided with respect to any Securities of any series pursuant
to Section 3.1 or required by the Depositary, any Security of such series in
global form authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. Unless and until it is
exchanged in whole or in part for Securities in certificated form, this
Security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such
successor Depositary. Every Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, this
Security will be in global form, subject to the foregoing.
ARTICLE III
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect
to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
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(1) the title of the Securities of the series (which title
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 (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination and/or extension of such date or dates; and the amount or
amounts of such principal and premium, if any, payments or the method
of determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating and/or
resetting such rate or rates of interest, the date or dates from which
such interest shall accrue or the method by which such date or dates
shall be determined, the Interest Payment Dates on which any such
interest shall be payable and, with respect to Registered Securities,
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable;
(6) the period or periods within which, the price or prices
at which, the currency or currencies (including currency units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 10.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or
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units) in which the principal of, premium, if any, and interest, if
any, or other payments, if any, on the Securities of the series shall
be payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.11;
(10) if the payments of principal of, premium, if any, or
interest, if any, or other payments, if any, on the Securities of the
series are to be made, at the election of the Company or a Holder, in a
currency or currencies (including currency unit or units) other than
that in which such Securities are denominated or designated to be
payable, the currency or currencies (including currency unit or units)
in which such payments are to be made, the terms and conditions of such
payments and the manner in which the exchange rate with respect to such
payments shall be determined, and the particular provisions applicable
thereto in accordance with, in addition to, or in lieu of the
provisions of Section 3.11;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, or other payments, if any, on the Securities
of the series shall be determined with reference to an index, formula
or other method (which index, formula or method may be based, without
limitation, on the price of one or more commodities, derivatives or
securities; one or more securities, derivatives or commodities exchange
indices or other indices; a currency or currencies (including currency
unit or units) other than that in which the Securities of the series
are denominated or designated to be payable; or any other variable or
the relationship between any variables or combination of variables),
the index, formula or other method by which such amounts shall be
determined;
(12) if other than the principal amount thereof, the portion
of the principal amount of such Securities of the series or other
amount which shall be payable upon declaration of acceleration thereof
pursuant to Section 5.2 or the method by which such portion or amount
shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(14) if the principal amount payable at the Maturity of any
Securities of the series will not be determinable as of one or more
dates prior to Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date hereunder or
thereunder, or, if other than as provided in the definition of the term
"Outstanding", which shall be deemed to be Outstanding as of any date
prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);
(15) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
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(16) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article IX pertaining to the Securities of the series;
(17) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a Person
who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(18) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(19) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(20) the forms of the Securities and coupons, if any, of the
series;
(21) the exclusion of Section 4.4 or 4.5, or both, with
respect to the Securities of or within the series; or the
applicability, if any, to the Securities of or within the series of
such means of defeasance or covenant defeasance other than those
provided in Sections 4.4 and 4.5 as may be specified for the Securities
and coupons, if any, of such series, and whether, for the purpose of
any defeasance or covenant defeasance pursuant to Section 4.4 or 4.5 or
otherwise, the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of
the United States or an agency or instrumentality of the United States;
(22) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(23) any terms which may be related to warrants issued by the
Company in connection with, or for the purchase of, Securities of such
series, including whether and under what circumstances the Securities
of any series may be used toward the exercise price of any such
warrants;
(24) the designation of the initial Exchange Rate Agent, if
any;
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(25) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for such global
Securities, (ii) the form of any legend in addition to or in lieu of
that in Section 2.4 which shall be borne by such global Securities,
(iii) whether beneficial owners of interests in any Securities of the
series in global form may exchange such interests for certificated
Securities of such series and of like tenor of any authorized form and
denomination, and (iv) if other than as provided in Section 3.5, the
circumstances under which any such exchange may occur;
(26) if the Securities of the series will be governed by, and
the extent to which such Securities will be governed by, any law other
than the laws of the state of New York; and
(27) any other terms of the series, including any terms which
may be required by or advisable under United States laws or regulations
or advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) The terms applicable to the Securities of any one series
and coupons, if any, appertaining to any Bearer Securities of such series need
not be identical but may vary as may be provided (i) by a Board Resolution, (ii)
by action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000
and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, any Executive Vice President, any Senior Vice President or
any Vice President. The Company's seal shall be reproduced on the Securities and
shall be attested by the Corporate Secretary or any Assistant Secretary. The
signatures of any of these officers on the Securities may be manual or
facsimile. The coupons, if any,
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of Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, any Executive Vice President, any Senior Vice President,
any Vice President, the Treasurer or any Assistant 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, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series have been
established by 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 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel substantially to the effect that,
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 3.1, such terms have been, or in the case of Securities of a
series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) 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 legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar
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laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles and except
further as enforcement thereof may be limited by or subject to certain
exceptions and qualifications specified in such Opinion of Counsel,
including in the case of any Securities denominated in a Foreign
Currency, (A) requirements that a claim with respect to any Securities
denominated other than in Dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in foreign currency or currency units
or payments outside the United States.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) reasonably acceptable to the Company, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Notwithstanding the generality of the
foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then, unless otherwise provided with respect to such Securities pursuant to
Section 3.1, the Company shall execute and the Trustee shall, in accordance with
this Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear the
legend set forth in Section 2.4.
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Unless otherwise established pursuant to Section 3.1, each
Depositary designated pursuant to Section 3.1 for a Registered Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation. Neither the
Company nor the Trustee shall have any responsibility to determine if the
Depositary is so registered.
Each Depositary shall enter into an agreement with the Trustee governing the
respective duties and rights of such Depositary and the Trustee with regard to
Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any purpose
until authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement (which
need not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall not be entitled to
the benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, all or a portion of such temporary
Securities may be in global form.
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Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of 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 pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in or pursuant to the Board Resolutions relating thereto and such
delivery shall occur only outside the United States. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment or in such other place or medium as may be specified
pursuant to Section 3.1 a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. Unless
otherwise provided as contemplated by Section 3.1, the Trustee is hereby
appointed "Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount.
Unless otherwise provided as contemplated by Section 3.1,
Bearer Securities (except for any temporary global Bearer Securities) or any
coupons appertaining thereto (except for coupons attached to any temporary
global Bearer Security) shall be transferable by delivery.
Unless otherwise provided as contemplated by Section 3.1, at
the option of the Holder, Registered Securities of any series (except a
Registered Security in global form) may be exchanged for other Registered
Securities of the same series, of any authorized denominations and
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<PAGE> 32
of a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 9.2, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such coupon is so surrendered with such Bearer Security, such coupon
shall be returned to the person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as 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.
Unless otherwise specified pursuant to Section 3.1 with
respect to a series of Securities or as otherwise provided below in this Section
3.5, owners of beneficial interests in Securities of such series represented by
a Security issued in global form will not be entitled to have Securities of such
series registered in their names, will not receive or be entitled to receive
physical delivery of Securities of such series in certificated form and will not
be considered the Holders or
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<PAGE> 33
owners thereof for any purposes hereunder. Notwithstanding any other provision
of this Section, unless and until it is exchanged in whole or in part for
Securities in certificated form in the circumstances described below, a Security
in global form representing all or a portion of the Securities of a series may
not be transferred or exchanged except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series notifies the Company that it shall no longer be
eligible under Section 3.3, the Company shall appoint a successor Depositary
with respect to the Securities of such series. Unless otherwise provided as
contemplated by Section 3.1, if a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 3.1(b) (25) shall no longer be effective with
respect to the Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities of such series of like tenor, shall authenticate and
deliver, Securities of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities of a series issued in global form shall no longer be represented
by such a Security or Securities in global form. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Security in global form; and
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(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
upon any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing.
Unless otherwise provided as contemplated by Section 3.1, no
service charge shall be made for any registration of transfer or for any
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
Unless otherwise provided as contemplated by Section 3.1, the
Company shall not be required (i) to issue, register the transfer of, or
exchange any Securities for a period beginning at the opening of business l5
days before any selection for redemption of Securities of like tenor and of the
series of which such Security is a part and ending at the close of business on
the earliest date on which the relevant notice of redemption is deemed to have
been given to all Holders of Securities of like tenor and of such series to be
redeemed; (ii) to register the transfer of or exchange any Registered Security
so selected for redemption, in whole or in part, except the unredeemed portion
of any Security being redeemed in part; or (iii) to exchange any Bearer Security
so selected for
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<PAGE> 35
redemption, except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor; provided that such Registered Security
shall be simultaneously surrendered for redemption.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the Trustee's
requirements are met.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or Security with a destroyed, lost or stolen coupon and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or coupon has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a replacement Registered
Security, if such Holder's claim appertains to a Registered Security, or a
replacement Bearer Security with coupons corresponding to the coupons
appertaining to the destroyed, lost or stolen Bearer Security or the Bearer
Security to which such lost, destroyed or stolen coupon appertains, if such
Holder's claim appertains to a Bearer Security, of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding with coupons corresponding to the coupons, if any,
appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security or coupon, pay such
Security or coupon; provided, however, that payment of principal of and any
premium or interest on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 3.1, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
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<PAGE> 36
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupon, if any, or the destroyed, lost or stolen coupon, shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of 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.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to 9.2; provided, however, that at
the option of the Company, interest on any series of Registered Securities that
bear interest may be paid (i) by check mailed to the address of the Person
entitled thereto as it shall appear on the Register of Holders of Securities of
such series or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Register of Holders of Securities of such
series.
Unless otherwise provided as contemplated by Section 3.1, (A)
(i) interest, if any, on Bearer Securities shall be paid only against
presentation and surrender of the coupons for such interest installments as are
evidenced thereby as they mature and (ii) principal, original issue discount, if
any, and premium, if any, on Bearer Securities shall be paid only against
presentation and surrender of such Securities; in either case at the office of a
Paying Agent located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing provided that any such instruction
for payment in the United States does not cause any Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations; (B) the interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a coupon attached thereto
only upon presentation and surrender of such coupon as provided in clause (A)
above and, as to other installments of interest, only upon presentation of such
Security for notation thereon of the payment of such interest; and (C) if at the
time a payment of principal of premium, if any, or interest, if any, on a Bearer
Security or coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States is
illegal or effectively precluded because of the imposition of exchange controls
or other similar restrictions on the payment of such amount in Dollars, then the
Company may instruct the Trustee to make such payment at a Paying Agent located
in the United States, provided that provision for such payment in the United
States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations.
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<PAGE> 37
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on any Registered Security of any series which is payable, but is
not punctually paid or duly provided for, on any interest payment date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such 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 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
(1) provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company 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 such Registered Securities of such series at his address as
it appears in the Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
such Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest to
the Persons in whose names such Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
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Section 3.8. Persons Deemed Owners. Prior to due presentment
of any Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest and any other payments on
such Registered Security and for all other purposes whatsoever, whether or not
such Registered 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.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such
Depositary and owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of the rights of
such Depositary (or its nominee) as Holder of such Security in global form.
Section 3.9. Cancellation. The Company at any time may
deliver Securities and coupons to the Trustee for cancellation. The Registrar
and any Paying Agent shall forward to the Trustee any Securities and coupons
surrendered to them for replacement, for registration of transfer, or for
exchange or payment. The Trustee shall cancel all Securities and coupons
surrendered for replacement, for registration of transfer, or for exchange,
payment, redemption or cancellation and may destroy cancelled Securities and
coupons and, if so destroyed, shall issue a certificate of destruction to the
Company. The Company may not issue new Securities to replace Securities that it
has paid or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
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Section 3.11. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of, premium, if any, interest, if any, and other
amounts, if any, on any Registered or Bearer Security of such series will be
made in the currency or currencies or currency unit or units in which such
Registered Security or Bearer Security, as the case may be, is payable. The
provisions of this Section 3.11, including without limitation any defined terms
specified herein, may be modified or superseded in whole or in part pursuant to
Section 3.1 with respect to any Securities.
(b) It may be provided pursuant to Section 3.1, with respect
to Registered Securities of any series, that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of,
premium, if any, or interest, if any, on such Registered Securities in any of
the currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.1, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article IV or with respect to which a
notice of redemption has been given by or on behalf of the Company). Any Holder
of any such Registered Security who shall not have delivered any such election
to the Trustee (or any applicable Paying Agent) not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant currency or currency unit as provided in
Section 3.11(a). The Trustee (or the applicable Paying Agent) shall notify the
Company and the Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities for which
Holders have made such written election.
(c) If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency
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or currencies or currency unit or units in which Registered Securities of such
series are payable, the respective aggregate amounts of principal of, premium,
if any, and interest, if any, on such Registered Securities to be paid on such
payment date, and specifying the amounts in such currency or currencies or
currency unit or units so payable in respect of such Registered Securities as to
which the Holders of Registered Securities denominated in any currency or
currencies or currency unit or units shall have elected to be paid in another
currency or currency unit as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for with respect to any
Registered Securities of a series pursuant to Section 3.1, and if at least one
Holder has made such election, then, unless otherwise specified pursuant to
Section 3.1, on the second Business Day preceding such payment date the Company
will deliver to the Trustee (or the applicable Paying Agent) an Exchange Rate
Officers' Certificate in respect of the Dollar, Foreign Currency or Currencies
or other currency unit payments to be made on such payment date. Unless
otherwise specified pursuant to Section 3.1, the Dollar, Foreign Currency or
Currencies or other currency unit amount receivable by Holders of Registered
Securities who have elected payment in a currency or currency unit as provided
in paragraph (b) above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the second Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency or any other currency unit in which any of the Securities are
denominated or payable otherwise than pursuant to an election provided for
pursuant to paragraph (b) above, then, unless otherwise specified pursuant to
Section 3.1, with respect to each date for the payment of principal of, premium,
if any, and interest, if any, on the applicable Securities denominated or
payable in such Foreign Currency or such other currency unit occurring after the
last date on which such Foreign Currency or such other currency unit was used
(the "Conversion Date"), the Dollar shall be the currency of payment for use on
each such payment date (but such Foreign Currency or such other currency unit
that was previously the currency of payment shall, at the Company's election,
resume being the currency of payment on the first such payment date preceded by
15 Business Days during which the circumstances which gave rise to the Dollar
becoming such currency of payment no longer prevail). Unless otherwise specified
pursuant to Section 3.1, the Dollar amount to be paid by the Company to the
Trustee or any applicable Paying Agent and by the Trustee or any applicable
Paying Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a Foreign Currency
that is a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if
the Holder of a Registered Security denominated in any currency or currency unit
shall have elected to be paid in another currency or currency unit or in other
currencies as provided in paragraph (b) above, and (i) a Conversion Event occurs
with respect to any such elected currency or currency unit, such Holder shall
receive payment in the currency or currency unit in which payment would have
been made in the absence of such election and (ii) if a Conversion Event occurs
with respect to the currency or currency unit in which payment would have been
made in the absence of such election, such Holder
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shall receive payment in Dollars as provided in paragraph (d) of this Section
3.11 (but, subject to any contravening valid election pursuant to paragraph (b)
above, the elected payment currency or currency unit, in the case of the
circumstances described in clause (i) above, or the payment currency or currency
unit in the absence of such election, in the case of the circumstances described
in clause (ii) above, shall, at the Company's election, resume being the
currency or currency unit of payment with respect to Holders who have so
elected, but only with respect to payments on payment dates preceded by 15
Business Days during which the circumstances which gave rise to such currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the Dollar, in the case of the circumstances described in clause (ii) above,
becoming the currency or currency unit, as applicable, of payment, no longer
prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency (as each such term is defined in
paragraph (h) below) into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.11, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit.
"Conversion Event" shall mean the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, or (ii)
any currency unit for the purposes for which it was established.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant to Section 3.1
by which the written election referred to in Section 3.11(b) may be made.
"Euro" means the lawful currency of the participating member
states of the European Union that adopt a single currency in accordance with the
Treaty establishing the European Community, as amended by the Treaty on European
Union signed February 7, 1992.
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"Exchange Rate Agent", when used with respect to Securities
of or within any series, shall mean, unless otherwise specified with respect to
any Securities pursuant to Section 3.1, a New York Clearing House bank
designated pursuant to Section 3.1 or Section 3.12.
"Exchange Rate Officer's Certificate" shall mean a
certificate setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar or Foreign Currency amounts of
principal (and premium, if any) and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), payable with respect to a Security of
any series on the basis of such Market Exchange Rate or the applicable bid
quotation, signed by the President, the Chief Financial Officer, any Senior Vice
President, the Treasurer, any Vice President or any Assistant Treasurer of the
Company.
"Foreign Currency" shall mean any currency issued by the
government or governments of one or more countries other than the United States
or by any recognized confederation or association of such governments and shall
include the Euro.
"Market Exchange Rate" shall mean, unless otherwise specified
with respect to any Securities pursuant to Section 3.1, as of any date of
determination, (i) for any conversion involving a currency unit on the one hand
and Dollars or any Foreign Currency on the other, the exchange rate between the
relevant currency unit and Dollars or such Foreign Currency calculated by the
method specified pursuant to Section 3.1 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
buying rate for such Foreign Currency for cable transfers quoted in New York
City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located in New
York City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent. Unless
otherwise specified with respect to any Securities pursuant to Section 3.1, in
the event of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its
sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other principal market
for such currency or currency unit in question (which may include any such bank
acting as Trustee under this Indenture), or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or currency unit in order
to make payments in respect of such securities.
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A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which such
Component Currency represented in the relevant currency unit on the Conversion
Date. If after the Conversion Date the official unit of any Component Currency
is altered by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are consolidated into
a single currency, the respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a Specified Amount
and such single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by
specified amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of such
replacement, shall be equal to the Specified Amount of such former Component
Currency and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee (and any applicable Paying Agent) and all
Holders of Securities denominated or payable in the relevant currency,
currencies or currency units. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee of any such decision or
determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to any
currency unit in which Securities are denominated or payable, the Company will
promptly give written notice thereof to the Trustee (or any applicable Paying
Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent)
will promptly thereafter give notice in the manner provided in Section 1.6 to
the affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent
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change in any Component Currency as set forth in the definition of Specified
Amount above has occurred, the Company will similarly give written notice to the
Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.12. Appointment and Resignation of Exchange Rate
Agent. (a) Unless otherwise specified pursuant to Section 3.1, if and so long as
the Securities of any series (i) are denominated in a currency or currency unit
other than Dollars or (ii) may be payable in a currency or currency unit other
than Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 3.11
for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued currency or currencies or
currency unit or units into the applicable payment currency or currency unit for
the payment of principal, premium, if any, and interest, if any, pursuant to
Section 3.11.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company shall promptly appoint a successor Exchange Rate Agent or
Exchange Rate Agents with respect to the Securities of that or those series (it
being understood that any such successor Exchange Rate Agent may be appointed
with respect to the Securities of one or more or all of such series and that,
unless otherwise specified pursuant to Section 3.1, at any time there shall only
be one Exchange Rate Agent with respect to the Securities of any particular
series that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same currency or currencies or
currency unit or units).
Section 3.13. CUSIP Numbers. The Company in issuing
Securities may use "CUSIP" numbers (if then generally in use), and if so, the
Trustee may use the CUSIP numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, that reliance may be placed only on
the other
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identification numbers printed on the Securities, and any such redemption or
exchange shall not be affected by any defect or omission of such CUSIP numbers.
The Company will promptly notify the Trustee of any change in CUSIP numbers
known to an Officer of the Company.
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. (a) This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of or within any series and any coupons
appertaining thereto (except as to any surviving rights of registration of
transfer or exchange of such Securities and replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other than
(i) such coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 3.5, (ii)
such Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided in
Section 3.6, (iii) such coupons appertaining to Bearer
Securities called for redemption and maturing after the
relevant Redemption Date, surrender of which has been waived
as provided in Section 10.6 and (iv) such Securities and
coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 9.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
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and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or currency unit or units in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest,
with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
then payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.8, the
obligations of the Company to any Authenticating Agent under Section 6.13 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to
Section 3.1 provision is made to exclude with respect to the Securities of a
particular series either or both of (i) defeasance of the Securities of or
within such series under Section 4.4 or (ii) covenant defeasance of the
Securities of or within such series under Section 4.5, then the provisions of
such Section or Sections, as the case may be, together with the provisions of
Sections 4.6 through 4.9 inclusive, with such modifications thereto as may be
specified pursuant to Section 3.1 with respect to any Securities of such series,
shall be applicable to such Securities and any coupons appertaining thereto, and
the Company may at its
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option, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 4.4 (if applicable) or Section 4.5
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
Section 4.4. Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.3 applicable to this Section with
respect to the Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
4.6 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining
thereto, which Securities and coupons appertaining thereto shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 4.7 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall on Company Order execute proper instruments acknowledging the
same), except the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Securities and any
coupons appertaining thereto to receive, solely from the trust funds described
in Section 4.6(a) and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest, if any, on such
Securities or any coupons appertaining thereto when such payments are due; (ii)
the Company's obligations with respect to such Securities under Sections 3.5,
3.6, 9.2 and 9.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section 3.1(b)
(17); (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Article IV. Subject to compliance with this Article IV,
the Company may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 4.5 with respect to such Securities and any
coupons appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's exercise
of the option specified in Section 4.3 applicable to this Section with respect
to any Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4 and 9.5, and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4 and 9.5, or such other covenant,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or
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such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.1(3) or 5.1(6) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 4.4 or Section
4.5 to any Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee satisfying
the requirements of Section 6.11 who shall agree to comply with, and
shall be entitled to the benefits of, the provisions of Sections 4.3
through 4.9 inclusive and the last paragraph of Section 9.3 applicable
to the Trustee, for purposes of such Sections also a "Trustee") as
trust funds in trust for the purpose of making the payments referred to
in clauses (x) and (y) of this Section 4.6(a), specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any coupons appertaining thereto, with instructions
to the Trustee as to the application thereof, (A) money in an amount
(in such currency, currencies or currency unit in which such Securities
and any coupons appertaining thereto are then specified as payable at
Maturity), or (B) if Securities of such series are not subject to
repayment at the option of Holders, Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a combination thereof in an
amount, sufficient, in the opinion of a nationally recognized
independent accounting or investment banking firm expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and
discharge, (x) the principal of, premium, if any, and interest, if any,
on such Securities and any coupons appertaining thereto on the Maturity
of such principal or installment of principal or interest and (y) any
mandatory sinking fund payments applicable to such Securities on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and such Securities and any coupons
appertaining thereto. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article X which
shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or result in a breach or violation of, or
constitute a default under, any other material agreement or instrument
to which the Company is a party or by which it is bound.
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(c) In the case of an election under Section 4.4, no Default
or Event of Default under Section 5.1(4) or 5.1(5) with respect to such
Securities and any coupons appertaining thereto shall have occurred and
be continuing during the period commencing on the date of such deposit
and ending on the 91st day after such date (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(d) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Officers' Certificate and 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 execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(e) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 4.4 or Section
4.5 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the trustee
for such trust funds or (ii) all necessary registrations under said act
have been effected.
(g) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series
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and any coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in Section 4.6(a) has
been made, (i) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 3.11(b) or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 4.6(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.11(d)
or 3.11(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of,
premium, if any, and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable Market Exchange Rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
Section 4.8. Repayment to Company. The Trustee (and any
Paying Agent) shall promptly pay to the Company upon Company Request any excess
money or securities held by them at any time.
Section 4.9. Indemnity for Government Obligations. The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received on such
Government Obligations, other than any such tax, fee or other charge that by law
is for the account of the Holders of the Securities subject to defeasance or
covenant defeasance pursuant to this Article.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default" occurs
with respect to the
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Securities of any series if (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) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series
as specified pursuant to Section 3.1(b) (17) when the same becomes due
and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
or any premium on any Security of that series when the same becomes due
and payable at its Maturity or on redemption or otherwise, or in the
payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series, and in each case such default
continues for a period of ten days;
(3) the Company defaults in the performance of, or breaches,
any covenant or warranty of the Company in this Indenture with respect
to any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and such default or breach continues
for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in 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;
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(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the
entry of an order for relief against it in an involuntary case, (C)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment
for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case, (B) appoints a Custodian of the Company
or for all or substantially all of its property, or (C) orders the
liquidation of the Company; and the order or decree remains unstayed
and in effect for 90 days; or
(6) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice to the Company (and, if given by the Holders, to the
Trustee), may declare the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount or other amount as may be specified in the terms of that
series) of all the Securities of that series to be due and payable and upon any
such declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) shall be immediately
due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgement or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written notice
to the Trustee, may rescind and annul such declaration and its consequences if
all existing Defaults and Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
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Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and such
default continues for a period of 10 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal, premium, if any, and on any overdue interest, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such principal, premium, if any,
and interest 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 such principal, premium, if any, and interest amounts so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company.
In addition, if an Event of Default with respect to
Securities of any series occurs and is continuing, the Trustee may in its
discretion proceed, in its own name and as trustee of an express trust, to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders of
Securities allowed in any judicial proceedings relating to the Company, its
creditors or its property.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee, in its own name and as
trustee of an express trust, without the possession of any of the Securities or
the production thereof in any proceeding relating thereto.
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Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of Outstanding Securities of any series
by notice to the Trustee may waive on behalf of the Holders of all Securities of
such series a past Default or Event of Default with respect to that series and
its consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
coupon appertaining thereto or (ii) in respect of a covenant or provision hereof
which pursuant to Section 8.2 cannot be amended or modified without the consent
of the Holder of each Outstanding Security of such series adversely affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. In case of
any such waiver, the Company, the Trustee and the Holders shall be restored to
their former positions and rights hereunder and under the Securities of such
series, respectively.
Section 5.8. Control by Majority. The Holders of a majority
in aggregate principal amount of the Outstanding Securities of each series
affected (with each such series voting as a class) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
(ii) the Trustee may refuse to follow any direction that is unduly prejudicial
to the rights of the Holders of Securities of such series not consenting, or
that would in the good faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal liability and (iii) the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any coupons appertaining thereto 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) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings
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in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or coupon to receive payment of
principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest on
the Security, on or after the respective due dates expressed in the Security
(or, in case of redemption, on the redemption dates), and the right of any
Holder of a coupon to receive payment of interest due as provided in such
coupon, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.8;
Second: to Holders of Securities and coupons in respect of
which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
Third: to the Company.
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The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 5.11. At least 15 days before such record date, the
Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Waiver of Stay, Extension or Usury 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 or any usury or other similar
law wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Company from paying all or any portion of the principal of (or
premium, if any) or interest on the Securities contemplated herein or in the
Securities or that 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. Rights of Trustee. Subject to the provisions of
the Trust Indenture Act:
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any document believed by it to
be genuine and to have been
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signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 3.3, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may
consult with counsel acceptable to the Company and the Trustee or
require an Officers' Certificate. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on a
Board Resolution, the written advice of counsel acceptable to the
Company and the Trustee, a certificate of an Officer or Officers
delivered pursuant to Section 1.2, an Officers' Certificate or an
Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(e) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or
within its discretion or rights or powers.
(f) Unless otherwise expressly provided in this Indenture,
the Trustee shall have no obligation to distribute to Holders, the
Company or any third party any amounts to be paid to the Trustee until
such amounts are collected by the Trustee.
(g) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder.
Notwithstanding anything contained herein to the contrary, in case an Event of
Default with respect to the Securities of any series has occurred and is
continuing, the Trustee shall exercise, with respect to Securities of such
series, such of the rights and powers vested in it by this Indenture, and shall
use the same degree of care and skill in their exercise, as a prudent individual
would exercise or use under the circumstances in the conduct of his or her own
affairs.
Section 6.2. Trustee May Hold Securities. The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or Subsidiary with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.3. 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
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under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.4. Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities or any coupon, except that the Trustee represents and warrants that
it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and thereunder; that the
statements made by it in a Statement of Eligibility on Form T-1 supplied or to
be supplied to the Company in connection with the registration of any Securities
are and will be true and accurate subject to the qualifications set forth
therein; and that such Statement complies and will comply in all material
respects with the requirements of the Trust Indenture Act and the Securities
Act. The Trustee shall not be accountable for the Company's use of the proceeds
from the Securities or for monies paid over to the Company pursuant to the
Indenture.
Section 6.5. Notice of Defaults. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to
the Trustee, the Trustee shall, within 90 days after it occurs, transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all uncured Defaults known to it; provided, however, that, except in
the case of a Default in payment on the Securities of any series, the Trustee
may withhold the notice if and so long as a Responsible Officer in good faith
determines that withholding such notice is in the interests of Holders of
Securities of that series; provided, further, that in the case of any default or
breach of the character specified in Section 5.1(3) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof.
Section 6.6. Reports by Trustee to Holders. Within 60 days
after each May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act. A copy of each report
shall, at the time of such transmission to Holders, be filed by the Trustee with
each stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the Trustee
when the Securities are listed on any stock exchange and of any delisting
thereof.
Section 6.7. Security Holder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of Securities of each
series. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee semiannually on or before the last day of June and December in each
year, and at such other times as the Trustee may request in writing, a list, in
such form and as of such date as the Trustee may reasonably require, containing
all the information in the possession or control of the Registrar,
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the Company or any of its Paying Agents other than the Trustee as to the names
and addresses of Holders of Securities of each such series. If there are Bearer
Securities of any series Outstanding, even if the Trustee is the Registrar, the
Company shall furnish to the Trustee such a list containing such information
with respect to Holders of such Bearer Securities only.
Section 6.8. Compensation and Indemnity. (a) The Company
shall pay to the Trustee from time to time such compensation for its services as
the Company and the Trustee may agree in writing from time to time. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable expenses, disbursements and advances incurred by it
in connection with the performance of its duties under this Indenture, except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith. Such expenses shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it
harmless against, any and all loss, liability, damage, claim or expense
(including taxes other than taxes based upon, measured by or determined by the
income of the Trustee), including the costs and expenses of defending itself
against any third-party claim (whether asserted by any Holder or any other
Person (other than the Company)), incurred by it arising out of or in connection
with its acceptance or administration of the trust or trusts hereunder
(collectively, "Claims"). The Trustee shall notify the Company promptly of any
Claim for which it may seek indemnity. The Company shall defend the Claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
(c) The Company need not reimburse any expense, disbursement
or advance or indemnify against any Claim incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, except that
held in trust to pay principal, premium, if any, and interest on particular
Securities.
(e) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(4) or Section
5.1(5), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
(f) The provisions of this Section shall survive the
termination of this Indenture.
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Section 6.9. Replacement of Trustee. (a) The resignation or
removal of the Trustee and the appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in Section 6.10.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.10 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may remove the Trustee with respect
to that series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the Company's consent.
If an instrument of acceptance by a successor Trustee required by Section 6.10
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the Trustee being removed may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 6.11
hereof or Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of a Security for at
least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge
of the Trustee or its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or becomes incapable
of acting or if a vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more
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series, the Company shall promptly appoint a successor Trustee with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.10. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.10, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.10, then, subject to Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.10. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights, powers 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 such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
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constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 1.6. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 6.11. Eligibility; Disqualification. There shall at
all times be a Trustee hereunder with respect to each series of Securities
(which need not be the same Trustee for all series). Each Trustee hereunder
shall be eligible to act as trustee under Section 310(a) (1) of the Trust
Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
If the Trustee has or shall acquire 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. To
the extent permitted by the Trust Indenture Act, any Trustee hereunder shall not
be deemed to have a conflicting interest by virtue of being the trustee under
the Indenture dated May 1, 1986 between the Company and Commerce Union Bank, the
Indenture dated March 1, 1991 between the Company and Citibank, N.A., Trustee or
the Indenture dated March 1, 1992 between the Company
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and Morgan Guaranty Trust Company of New York and with respect to any or all
series of securities issued or issuable under such indentures, or, with respect
to any series of Securities, by virtue of being the Trustee with respect to any
other series of Securities.
Section 6.12. 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 6.13. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
exchange, registration of transfer or partial redemption thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $1,500,000 and subject to supervision or examination by Federal
or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
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 herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time such reasonable compensation as the Company and such Authenticating
Agent agree in writing from time to time including reimbursement of its
reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated herein
and issued under the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By
-----------------------------------------
as Authenticating Agent
By
-----------------------------------------
Authorized Signatory
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ARTICLE VII
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company may merge or consolidate with or into any other Person or
sell, convey, transfer or otherwise dispose of all or substantially all of its
assets to any Person, if (i) (A) in the case of a merger or consolidation, the
Company is the surviving corporation or (B) in the case of a merger or
consolidation where the Company is not the surviving corporation and in the case
of any sale, conveyance, transfer or other disposition, the resulting, surviving
or transferee Person is organized and existing under the laws of the United
States or a State thereof and such Person expressly assumes by supplemental
indenture all the obligations of the Company under the Securities and any
coupons appertaining thereto and under this Indenture, (ii) immediately
thereafter, giving effect to such merger or consolidation, or such sale,
conveyance, transfer or other disposition, no Default or Event of Default shall
have occurred and be continuing and (iii) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such merger, consolidation, sale, conveyance, transfer or other disposition
complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with. In the event of the
assumption by a successor Person of the obligations of the Company as provided
in clause (i) (B) of the immediately preceding sentence, such successor Person
shall succeed to and be substituted for the Company hereunder and under the
Securities and any coupons appertaining thereto and all such obligations of the
Company shall terminate.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into indentures supplemental hereto, in
form reasonably 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 and
obligations of the Company herein and in the Securities (with such
changes herein and therein as may be necessary or advisable to reflect
such Person's legal status, if such Person is not a corporation); 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
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benefit of such series) or to surrender any right or power herein
conferred upon the Company or to comply with any requirement of the
Commission in connection with the qualification of this Indenture under
the Trust Indenture Act or otherwise; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only)
or to facilitate or provide for the issuance of Securities in global
form in addition to or in place of Securities in certificated form; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only with respect to Securities which have not been issued as
of the execution of such supplemental indenture or when there is no
Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to provide for the delivery of indentures supplemental
hereto or the Securities of any series in or by means of any
computerized, electronic or other medium, including without limitation
by computer diskette; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and/or 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 Article VI; or
(10) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or coupons,
if any; or
(11) to correct or supplement any provision herein which may
be inconsistent with any other provision herein or to cure any
ambiguity or omission or to correct any mistake; or
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(12) to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series.
Section 8.2. With Consent of Holders. With the written
consent of the Holders of a majority of the aggregate principal amount of the
Outstanding Securities of each series adversely affected by such supplemental
indenture (with the Securities of each series voting as a class), the Company
and the Trustee may enter into an indenture or indentures supplemental hereto to
add any provisions to or to change or eliminate any provisions of this Indenture
or of any other indenture supplemental hereto or to modify the rights of the
Holders of Securities of each such series; provided, however, that without the
consent of the Holder of each Outstanding Security affected thereby, a
supplemental indenture under this Section may not:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or Indexed Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change the coin or
currency in which any Securities or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 9.2; or
(4) except to the extent provided in Section 8.1(9), make any
change in Section 5.7 or this 8.2 except to increase any percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived except with the consent of the Holders of each
Outstanding Security affected thereby.
For the purposes of this Section 8.2, if the Securities of
any series are issuable upon the exercise of warrants, any holder of an
unexercised and unexpired warrant with respect to such series shall not be
deemed to be a Holder of Outstanding Securities of such series in the amount
issuable upon the exercise of such warrants.
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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 is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. The Trustee shall enter into
any such supplemental indenture if such supplemental indenture does not
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby; provided that if such
supplemental indenture makes any of the changes described in clauses (1) through
(4) of the first proviso to Section 8.2, such supplemental indenture shall bind
each Holder of a Security who has consented to it and every subsequent Holder of
such Security or any part thereof.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities including any
coupons of any series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any coupons of such series.
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ARTICLE IX
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest on the Securities of that series in accordance
with the terms of the Securities of such series, any coupons appertaining
thereto and this Indenture. An installment of principal, premium, if any, or
interest shall be considered paid on the date it is due if the Trustee or Paying
Agent holds on that date money designated for and sufficient to pay the
installment.
Section 9.2. Maintenance of Office or Agency. If Securities
of a series are issued as Registered Securities, the Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, (i) subject
to any laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, where
Securities of that series and related coupons may be presented and surrendered
for payment; provided, however, that if the Securities of that series are listed
on The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, 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 (ii) subject to any laws or regulations applicable thereto, an
office or agency in a Place of Payment for that series which is located outside
the United States where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside
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the United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium or
interest on any such Bearer Security shall be made at an office of a Paying
Agent of the Company in the Borough of Manhattan, The City of New York, if (but
only if) payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
Subject to the preceding paragraphs, the Company may also
from time to time designate one or more other offices or agencies where the
Securities (including any coupons, if any) of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities (including any
coupons, if any) of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1,
the Trustee shall initially serve as Paying Agent. The Paying Agent may make
reasonable rules not inconsistent herewith for the performance of its functions.
Section 9.3. Money for Securities to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
If the Company is not acting as its own Paying Agent, the
Company will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities; and
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(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 any principal, premium or
interest or other amounts on any Security of any series and remaining unclaimed
for two years after such principal, premium, if any, or interest or other
amounts has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security and coupon, if any, shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article VII, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company.
Section 9.5. Insurance. The Company covenants and agrees that
it will maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations or through a
program of self-insurance in such amounts and covering such risks as are
consistent with sound business practice for corporations engaged in the same or
a similar business similarly situated.
Section 9.6. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information,
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documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with
the Commission pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either
of such sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to section 13 of
the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time
by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture, as may be required from time
to time by such rules and regulations; and
(c) to transmit to all Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section 9.6, as may be required by rules and regulations prescribed
from time to time by the Commission.
Subject to the provisions of the Trust Indenture Act and
except as otherwise expressly provided in this Indenture, delivery of such
reports, information and documents to the Trustee is for informational purposes
only, and the Trustee's receipt of such reports, information and documents shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder.
Section 9.7. Annual Review Certificate. The Company covenants
and agrees to deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, a brief certificate from the principal executive
officer, principal financial officer, or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this Section 9.7, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 9.8 Calculation of Original Issue Discount. Except as
the Company and the Trustee may otherwise agree, the Company shall file with
the Trustee promptly following the end of each calendar year (a) written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and (b) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE X
REDEMPTION
Section 10.1. Applicability of Article. Securities (including
coupons, if any) of or within any series which are redeemable in whole or in
part before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including coupons, if any,
shall be evidenced by or pursuant to a Board
65
<PAGE> 73
Resolution or a Company Order. In the case of any redemption at the election of
the Company of less than all the Securities or coupons, if any, of any series
having the same terms, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
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 10.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the redemption date, shall
select the Securities of the series to be redeemed in such manner as the Trustee
shall deem fair and appropriate. The Trustee shall make the selection from
Securities of the series that are Outstanding and that have not previously been
called for redemption and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple thereof) of the
principal amount of Securities, including coupons, if any, of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed. If the Securities (including coupons, if any) of a series having
different issue dates, interest rates and maturities (whether or not originally
issued in a Periodic Offering) are to be redeemed, the Company in its discretion
may select the particular Securities or portions thereof to be redeemed and
shall notify the Trustee thereof by such time prior to the relevant redemption
date or dates as the Company and the Trustee may agree.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including coupons,
if any) redeemed or to be redeemed only in part, to the portion of the principal
amount of such Securities (including coupons, if any) which has been or is to
be redeemed.
Section 10.4. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption shall be given in
the manner provided in Section 1.6 not less than 30 days nor more than 60 days
prior to the Redemption Date to the Holders of the Securities to be redeemed.
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<PAGE> 74
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption and
all unmatured coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of such Securities.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 10.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article XI, segregate and hold in
trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency units or composite currencies) in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series)
67
<PAGE> 75
sufficient to pay on the Redemption Date the Redemption Price of, and (unless
the Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date and the
principal of, and premium, if any, on such Bearer Securities shall be payable
only at an office or agency located outside the United States and it possessions
(except as otherwise provided in Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of coupons for
such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Securities
whose Stated Maturity is 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 Bearer Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside of the United States (except
as otherwise provided pursuant to Section 9.2) and, unless otherwise specified
as contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
68
<PAGE> 76
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon surrender of
a Security that is redeemed in part at any Place of Payment therefor (with, if
the Company or the Trustee so require, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge a new Security or Securities of
the same series, having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
ARTICLE XI
SINKING FUNDS
Section 11.1. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured coupons appertaining
thereto and (ii) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
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<PAGE> 77
Section 11.3. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, 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 11.2 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 10.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 10.6 and 10.7.
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<PAGE> 78
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
AMR CORPORATION
By:
----------------------------
Title:
[Seal]
Attest:
- -------------------------
Title:
CITIBANK, N.A., as Trustee
By:
----------------------------
Title:
[Seal]
Attest:
- -------------------------
Title:
71
<PAGE> 1
EXHIBIT 4(b)
=====================================================================
AMR CORPORATION
to
CITIBANK, N.A.,
as Trustee
--------------------------
SUPPLEMENTAL INDENTURE NO. 1
Dated July 13, 1999
--------------------------
Series of
7.875% Public Income NotES due July 13, 2039
$150,000,000
=====================================================================
<PAGE> 2
AMR CORPORATION
SUPPLEMENTAL INDENTURE NO. 1
$150,000,000
7.875% Public Income NotES due July 13, 2039
SUPPLEMENTAL INDENTURE No. 1, dated July 13, 1999, from AMR
CORPORATION, a Delaware corporation (the "Company"), to CITIBANK, N.A., a
national banking association organized and existing under the laws of the United
States of America, as trustee (the "Trustee").
Recitals
The Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of December 1, 1998 (the "Indenture"), providing
for the issuance from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
2.1 and 3.1 of the Indenture.
For and in consideration of the premises and the issuance of
the series of Securities provided for herein, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the Holders of the
Securities of such series:
ARTICLE I
RELATION TO INDENTURE; DEFINITIONS
Section 1.1. This Supplemental Indenture No. 1 constitutes an
integral part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture
No. 1:
(1) Capitalized terms used herein without definition shall
have the meanings specified in the Indenture;
<PAGE> 3
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture No. 1; and
(3) The terms "herein", "hereof", "hereunder" and other words
of similar import refer to this Supplemental Indenture No. 1.
ARTICLE II
THE SERIES OF NOTES
Section 2.1. Title of the Securities. There shall be a series
of Securities designated the "7.875% Public Income NotES" (the "Notes").
Section 2.2. Limitation on Aggregate Principal Amount; Date of
Notes. The aggregate principal amount of the Notes shall be limited to
$150,000,000; provided, however, that the series may be reopened if the
underwriters (the "Underwriters") named in that certain Underwriting Agreement,
dated July 7, 1999 (the "Underwriting Agreement"), between the Company and
Goldman, Sachs & Co. and Salomon Smith Barney Inc., as Representatives of the
Underwriters named in Schedule I thereto, exercise all or any portion of the
option granted pursuant to the Underwriting Agreement to buy up to an additional
$22,500,000 aggregate principal amount of Notes at any time on or prior to
August 6, 1999 (the "Underwriters' Option"). If the Underwriters' Option is
exercised in whole or in part, the limit on the aggregate principal amount of
Notes shall be increased by the aggregate principal amount of Notes with respect
to which the Underwriters' Option is exercised and any Note issued pursuant to
or in consequence of the Underwriters' Option shall constitute a "Note" for all
purposes of the Indenture and of this Indenture Supplement and a part of the
series of 7.875% Public Income NotES due July 13, 2039 provided for herein. Each
Note shall be dated the date of its authentication.
Section 2.3. Principal Payment Dates. The principal of the
Notes shall be payable in a single installment on July 13, 2039.
Section 2.4. Interest and Interest Rates. The rate of interest
on each Note shall be 7.875% per annum, accruing from July 13, 1999 or from the
most recent Interest Payment Date to which interest on such Note has been paid
or duly provided for. Interest shall be payable on each Note in arrears on
January 31, April 30, July 31 and October 31 of each year, commencing on July
31, 1999 (each, an "Interest Payment Date"). The amount of interest payable for
any period will be computed on the basis of twelve 30-day months and a 360-day
year, and for any period shorter than a full quarterly interest period, will be
computed on the basis of the actual number of days elapsed in such 90-day
quarterly interest period. The interest so payable on any Note which is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Note is registered at the close of business on
the January 15, April 15, July 15 or October 15, respectively (whether or not a
Business Day) (each a "Regular Record Date") preceding such Interest Payment
Date. The interest so payable on any Note which is not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable to
the Person in whose name such Note is registered on
2
<PAGE> 4
the relevant Regular Record Date, and such defaulted interest shall instead be
payable to the Person in whose name such Note is registered on the special
record date or other specified date determined in accordance with the Indenture.
Section 2.5. Place of Payment. The Place of Payment where the
Notes may be presented or surrendered for payment, where the Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Notes and the Indenture may be
served shall be in the Borough of Manhattan, The City of New York, New York, and
the office or agency maintained by the Company for such purpose shall initially
be the Corporate Trust Office of the Trustee.
Section 2.6. Redemption. The Notes shall not be subject to
redemption at the option of the Company at any time prior to July 13, 2004. The
Notes shall be redeemable at the option of the Company, in whole or in part, on
or at any time after July 13, 2004 at a Redemption Price equal to 100% of the
principal amount of the Notes so redeemed plus accrued and unpaid interest to
the Redemption Date. So long as the Notes are listed for trading on the New York
Stock Exchange, if less than all of the Notes are to be redeemed, the Trustee,
not more than 45 days prior to the redemption date, shall select the Notes to be
redeemed by lot or pro rata or in such other manner permitted by the rules of
the New York Stock Exchange. The Company shall have no obligation to redeem or
purchase the Notes pursuant to any sinking fund or analogous provisions or upon
the happening of any specified event or at the option of any Holder of the
Notes. The Company may at any time repurchase any of the Notes at any price in
the open market and may hold, resell or surrender such Notes to the Trustee for
cancellation.
Section 2.7. Denomination. The Notes shall be issued in
denominations of $25 and integral multiples thereof.
Section 2.8. Currency. Principal and interest on the Notes
shall be payable in Dollars.
Section 2.9. Registered Securities. The Notes shall be issued
as Registered Securities, without coupons.
Section 2.10. Form of Notes. The Notes shall be substantially
in the form attached as Exhibit A hereto.
Section 2.11. Defeasance and Covenant Defeasance. The
provisions of Sections 4.4 and 4.5 of the Indenture shall apply to the Notes.
Section 2.12. Registrar and Paying Agent. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.13 Global Form. The Notes will be issued in whole in
global form and the Depositary for the Notes shall initially be The Depository
Trust Company. Beneficial owners
3
<PAGE> 5
of interests in the Notes may not exchange such interests for certificated
Notes, except as provided in Section 3.5 of the Indenture. In addition to the
legend set forth in Section 2.4 of the Indenture, the Notes shall bear a legend
in substantially the following form:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to AMR Corporation or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
The Notes shall be subject initially to the conditions set forth in the
Letter of Representations among the Company, the Trustee and The Depository
Trust Company, dated July 6, 1999, relating to the Notes.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 1, is in all respects hereby adopted, ratified
and confirmed.
Section 3.2. This Supplemental Indenture No. 1 may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 3.3. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH
NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK.
4
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 1 to be duly executed, as of the day and year first
written above.
AMR CORPORATION
By:
-------------------------------
Gerard J. Arpey
Senior Vice President and
Chief Financial Officer
[Corporate Seal]
Attest:
-----------------------------
Charles D. MarLett
Corporate Secretary
CITIBANK, N.A.,
Trustee
By:
-------------------------------
Name:
Title:
[Corporate Seal]
Attest:
-----------------------------
Name:
Title:
5
<PAGE> 7
Exhibit A to
Supplemental Indenture No. 1
[FORM OF FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO AMR
CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON
REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SECURITY
WILL BE IN GLOBAL FORM, SUBJECT TO THE FOREGOING.
7.875% Public Income Notes Due July 13, 2039
AMR CORPORATION
CUSIP No.
No. $
--------------- -----------------
AMR Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to _________________, or registered assigns,
the principal sum of _______________ Dollars on July 13, 2039 upon presentation
and surrender of this Note and to pay interest thereon from July 13, 1999 or
from the most recent interest payment date to which interest has been paid or
duly provided for. Interest shall be payable on this Note in arrears on January
31, April 30, July 31 and October 31 of each year, commencing on July 31, 1999,
at the rate of 7.875% per annum, until the principal hereof is paid or made
available
1
<PAGE> 8
for payment, and at the rate borne by this Note on any overdue principal and (to
the extent that the payment of such interest shall be legally enforceable) on
any overdue installment of interest. The interest so payable on any interest
payment date which is punctually paid or duly provided for on any interest
payment date will, as provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Note is registered at the close
of business on the Regular Record Date for such interest, which shall be the
January 15, April 15, July 15 or October 15, respectively (whether or not a
Business Day), preceding such interest payment date. Interest payable on this
Note which is not punctually paid or duly provided for on any interest payment
date shall forthwith cease to be payable to the person in whose name this Note
is registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the person in whose name this Note is registered on
the Special Record Date or other specified date determined in accordance with
the Indenture referred to on the reverse hereof.
Payment of the principal of and interest on this Note will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York (which shall initially be an office
or agency of the Trustee), in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company, interest on
the Notes may be paid (i) by check mailed to the address of the person entitled
thereto as such address shall appear in the register of Holders of the Notes or
(ii) by wire transfer to an account maintained by the person entitled thereto as
specified in the register of Holders of the Notes.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
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<PAGE> 9
IN WITNESS WHEREOF, AMR Corporation has caused this instrument
to be executed in its corporate name by the manual or facsimile signature of its
Chairman of the Board and President, one of its Executive Vice Presidents, one
of its Senior Vice Presidents or one of its Vice Presidents and impressed or
imprinted with its corporate seal or facsimile thereof, attested by the manual
or facsimile signature of its Corporate Secretary or an Assistant Secretary.
Dated:
[Corporate Seal] AMR CORPORATION
By:
------------------------------
Title:
Attest:
--------------------------
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of a series issued under the
within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By:
------------------------------
Authorized Officer
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<PAGE> 10
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of December 1, 1998 (herein called the
"Indenture"), from the Company to Citibank, N.A. (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited to $150,000,000 in aggregate principal amount (but subject to increase
as set forth in the Supplemental Indenture referred to below), and is issued
pursuant to Supplemental Indenture No. 1, dated July 13, 1999, from the Company
to the Trustee, relating to the Securities of this series.
The Securities of this series shall not be subject to
redemption at the option of the Company at any time prior to July 13, 2004. The
Securities of this series shall be redeemable at the option of the Company, in
whole or in part, on or at any time after July 13, 2004 at a redemption price
equal to 100% of the principal amount of the Securities so redeemed plus accrued
and unpaid interest to the redemption date. The Company shall have no obligation
to redeem or purchase the Securities pursuant to any sinking fund or upon the
happening of any specified event or at the option of any Holder of the
Securities.
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the indebtedness on this Security upon compliance by
the Company with certain conditions set forth therein, which provisions apply to
this Security.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive
certain existing defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of
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<PAGE> 11
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
interest on, this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations as therein set forth, the transfer of this Security is registrable
on the Register, upon surrender of this Security for registration of transfer at
the office or agency of the Company in any place where the principal of and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company, the Trustee
and the Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable in denominations of
$25 and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner
hereof for all purposes (subject to the provisions hereof with respect to
determination of the person to whom interest is payable).
No past, present or future director, officer, employee, agent,
member, manager, trustee or stockholder, as such, of the Company or any
successor Person shall have any liability for any obligations of the Company or
any successor Person, either directly or through the Company or any successor
Person, under the Securities of this series or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation,
whether by virtue of any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise. By accepting a Security of this series, each Holder agrees to the
provisions of this paragraph and waives and releases all such liability. Such
waiver and release shall be part of the consideration for the issue of the
Securities of this series.
THIS SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
5
