UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from . . . .to . . . . . . . . . .
Commission file number 1-3521
ARISTAR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4128205
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8900 Grand Oak Circle, Tampa, FL 33637-1050
(Address of principal executive offices) (Zip Code)
(813) 632-4500
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
As of July 31, 1995, there were 1,000 shares of Common Stock outstanding.
Registrant meets the conditions set forth in General Instruction (H)(1)(a) and
(b) of Form 10-Q and is therefore filing this Form with the reduced disclosure
format.
<PAGE> 2
ARISTAR, INC. AND SUBSIDIARIES
FORM 10-Q
INDEX
<TABLE>
<S> <C>
Part I. Financial Information:
Item 1. Financial Statements
Consolidated Statements of Financial Condition -
June 30, 1995, December 31, 1994, and
June 30, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Statements of Operations and Retained Earnings -
Three Months and Six Months Ended June 30, 1995 and 1994. . . . . . 4
Consolidated Statements of Cash Flows -
Three Months and Six Months Ended June 30, 1995 and 1994. . . . . . 5
Notes to Consolidated Financial Statements. . . . . . . . . . . . 6 - 7
Item 2. Management's Analysis of the
Results of Operations for the Six Months
Ended June 30, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . 8
Part II. Other Information:
Item 5. Other Information. . . . . . . . . . . . . . . . . . . . . . . 9
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . 10 - 11
SIGNATURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
<PAGE> 3
Item 1. Financial Statements
ARISTAR, INC. and Subsidiaries
Consolidated Statements of Financial Condition
(Unaudited)
<TABLE>
<CAPTION>
June 30, December 31, June 30,
(Dollars in thousands) 1995 1994 1994
<S> <C> <C> <C>
ASSETS
Finance receivables, net $ 1,522,038 $ 1,539,914 $1,460,129
Investment securities 111,840 106,600 98,467
Cash and cash equivalents 11,064 9,668 7,983
Property and equipment, less
accumulated depreciation and
amortization: 1995, $18,147;
1994, $21,684 and $20,642 12,026 13,327 14,574
Deferred charges 12,933 12,605 11,504
Excess of cost over equity of
companies acquired, less
accumulated amortization:
1995, $41,524; 1994, $38,021
and $34,517 65,487 68,990 72,494
Other assets 9,899 19,832 11,081
TOTAL ASSETS $ 1,745,287 $ 1,770,936 $1,676,232
LIABILITIES AND STOCKHOLDER'S EQUITY
Liabilities
Short-term debt $ 285,286 $ 179,085 $ 287,793
Long-term debt 937,717 1,092,545 892,799
Total debt 1,223,003 1,271,630 1,180,592
Accounts payable and other
liabilities 52,000 45,636 57,695
Federal and state income taxes 1,494 421 2,120
Insurance claims and benefits
reserves 7,741 7,792 7,467
Unearned insurance premiums and
commissions 54,208 53,890 51,977
Total liabilities 1,338,446 1,379,369 1,299,851
Stockholder's equity
Common stock: $1.00 par value;
10,000 shares authorized; 1,000
shares issued and outstanding 1 1 1
Paid-in capital 44,894 44,894 44,894
Retained earnings 362,203 350,266 333,521
Net unrealized holding gain (loss)
on investment securities (257) (3,594) (2,035)
Total stockholder's equity 406,841 391,567 376,381
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $ 1,745,287 $ 1,770,936 $1,676,232
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE> 4
ARISTAR, INC. and Subsidiaries
Consolidated Statements of Operations and Retained Earnings
(Unaudited)
<TABLE>
<CAPTION>
For the Three For the Six
Months Ended June 30, Months Ended June 30,
(Dollars in thousands) 1995 1994 1995 1994
<S> <C> <C> <C> <C>
Loan interest and fee income $ 77,069 $ 73,928 $154,053 $149,132
Investment securities income 2,033 1,405 3,780 2,611
Total interest income 79,102 75,333 157,833 151,743
Interest and debt expense 22,612 21,268 46,370 41,931
Net interest income before
provision for credit losses 56,490 54,065 111,463 109,812
Provision for credit losses 9,938 7,621 19,830 16,173
Net interest income 46,552 46,444 91,633 93,639
Other operating income
Net insurance operations
and other income 6,946 6,729 14,030 13,351
Other expenses
Personnel costs 15,611 15,399 31,871 31,726
Occupancy expense 2,294 2,028 4,543 4,183
Advertising expense 1,340 1,292 2,283 2,214
Amortization of excess cost over
equity of companies acquired 1,751 1,751 3,503 3,503
Other operating expenses 9,603 10,037 18,868 20,086
30,599 30,507 61,068 61,712
Income before income taxes 22,899 22,666 44,595 45,278
Provision for federal and
state income taxes 9,116 8,183 17,658 16,326
Net income 13,783 14,483 26,937 28,952
Retained Earnings
Beginning of period 355,920 325,288 350,266 317,069
Dividends paid (7,500) (6,250) (15,000) (12,500)
End of period $362,203 $333,521 $362,203 $333,521
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE> 5
ARISTAR, INC. and Subsidiaries
Consolidated Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
For the Three For the Six
Months Ended June 30, Months Ended June 30,
(Dollars in thousands) 1995 1994 1995 1994
<S> <C> <C> <C> <C>
Cash flows from operating activities
Net income $ 13,783 $ 14,483 $ 26,937 $ 28,952
Adjustments to reconcile net income
to net cash provided by operating
activities
Provision for credit losses 9,938 7,621 19,830 16,173
Depreciation and amortization 3,209 3,951 6,598 7,690
Deferred income taxes (1,265) 1,141 (1,768) 1,418
Increase (decrease) in
Accounts payable and other
liabilities 15,573 22,625 6,364 (14,546)
Unearned insurance premiums and
commissions and insurance claims
and benefits reserves (1,315) (1,131) 267 914
Currently payable income taxes (6,145) (11,048) 1,073 (3,781)
Decrease (increase) in other assets 254 (4,841) 9,933 (2,754)
Net cash provided by operating
activities 34,032 32,801 69,234 34,066
Cash flows from investing activities
Investment securities purchased (8,913) (17,610) (15,603) (25,380)
Investment securities matured 9,470 4,855 15,546 15,529
Finance receivables originated or
purchased (297,784)(293,574) (535,442) (548,678)
Finance receivables repaid or sold 264,942 264,049 531,924 525,972
Net change in property and equipment 60 (880) (118) (3,376)
Net cash provided by (used in)
investing activities (32,225) (43,160) (3,693) (35,933)
Cash flows from financing activities
Net change in short-term debt 164,204 7,734 106,201 8,186
Repayments of long-term debt (155,000) (155,000)
Dividends paid (7,500) (6,250) (15,000) (12,500)
Other, net (111) (60) (346) (60)
Net cash provided by (used in)
financing activities 1,593 1,424 (64,145) (4,374)
Net increase (decrease) in cash
and cash equivalents 3,400 (8,935) 1,396 (6,241)
Cash and cash equivalents
Beginning of period 7,664 16,918 9,668 14,224
End of period $ 11,064 $ 7,983 $ 11,064 $ 7,983
Supplemental disclosures of cash
flow information
Interest paid $ 20,027 $ 10,266 $ 47,811 $ 42,059
Intercompany payment in lieu of
federal and state income taxes 15,261 20,262 14,149 20,862
</TABLE>
See Notes to Consolidated Financial Statements.
<PAGE> 6
ARISTAR, INC. and Subsidiaries
Notes to Consolidated Financial Statements
(Unaudited)
Note 1 Basis of Presentation
The accompanying unaudited consolidated financial statements of Aristar, Inc.
and subsidiaries (the "Company") have been prepared in accordance with the
instructions to Form 10-Q and do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments
(consisting of normal recurring adjustments) considered necessary for a fair
presentation have been included. These statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
Certain amounts in prior periods have been reclassified to conform to the
current period's presentation.
Note 2 Ownership
The Company is an indirect, wholly-owned subsidiary of Great Western Financial
Corporation.
<PAGE> 7
ARISTAR, INC. and Subsidiaries
Notes to Consolidated Financial Statements (Continued)
Note 3 Finance Receivables
Finance receivables consist of the following:
<TABLE>
<CAPTION>
June 30, December 31, June 30,
(Dollars in thousands) 1995 1994 1994
<S> <C> <C> <C>
Consumer finance receivables
Real estate secured loans $ 533,266 $ 518,757 $ 521,415
Other instalment loans 1,034,712 1,055,723 948,803
Retail instalment contracts 309,142 331,424 336,557
Gross finance receivables 1,877,120 1,905,904 1,806,775
Less: Unearned finance charges and
deferred loan fees (313,338) (324,679) (306,909)
Allowance for credit losses (41,744) (41,311) (39,737)
Finance receivables, net $1,522,038 $1,539,914 $1,460,129
</TABLE>
Activity in the Company's allowance for credit losses is as follows:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
(Dollars in thousands) 1995 1994 1995 1994
<S> <C> <C> <C> <C>
Balance, beginning of period $40,946 $39,573 $41,311 $39,094
Provision for credit losses 9,938 7,621 19,830 16,173
Amounts charged off (13,521) (11,570) (27,716) (23,799)
Recoveries 4,041 3,907 7,979 7,811
Allowances on notes purchased 340 206 340 458
Balance, end of period $41,744 $39,737 $41,744 $39,737
</TABLE>
Note 4 Long-term Debt
Long-term debt at June 30, 1995 was comprised of:
(Dollars in thousands)
Senior Notes and Debentures $738,328
Senior Subordinated Notes
and Debentures 199,389
$937,717
<PAGE> 8
Item 2. MANAGEMENT'S ANALYSIS OF THE RESULTS OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1995
The Company's average net finance receivables outstanding were $71.8 million
greater in the first half of 1995 as compared to the same period of 1994,
while, as a reflection of interest rate and competitive pressures, the overall
portfolio yield decreased .29%. As a result, loan interest and fee income
increased $4.9 million, or 3.3%, for the six months ended June 30, 1995, over
the six months ended June 30, 1994. Income from investment securities
increased $1.2 million, with both the total invested balances and the yield
thereon increasing over the first half of 1994. As a result, total interest
income increased by $6.1 million. On the other hand, average debt outstanding
increased $43.4 million, or 3.7%, and the weighted average interest rate grew
by 47 basis points, resulting in an increase in interest and debt expense of
$4.4 million, or 10.6%, for the six months ended June 30, 1995, as compared to
the same 1994 period. These factors resulted in an increase in net interest
income before provision for credit losses of $1.7 million, or 1.5%.
The provision for credit losses for the six months ended June 30, 1995 was
2.55% as an annualized percentage of average net finance receivables for that
period, as compared to 2.18% for the first half of 1994. The increase in
provision rate reflects management's assessment of the quality of the
Company's receivables portfolio at this time.
Personnel expenses were $145 thousand, or .5%, higher in the period ended June
30, 1995 as compared to the same 1994 period because, while 1995 includes
normal compensation increases, 1994 reflected various one-time charges related
to the relocation of the Company s headquarters.
Productivity, defined as the ratio of operating and administrative expenses
(before deferral of direct loan costs) to average outstanding finance
receivables, improved to 8.3% in the six months ended June 30, 1995 as
compared to 8.8% in the first half of 1994. Contributing to this improvement
is the fact that the first half of 1994 included $1.0 million in amortization
of the cost of the Company s proprietary computer software, which became fully
amortized in the third quarter of 1994.
<PAGE> 9
PART II. OTHER INFORMATION
Item 5. Other Information
The calculation of the Company's ratio of earnings to fixed charges as of
the dates indicated is shown below:
<TABLE>
<CAPTION>
Six Months Year Six Months
Ended Ended Ended
June 30, December 31, June 30,
1995 1994 1994
<S> <C> <C> <C>
Income before income taxes $ 44,595 $ 91,592 $ 45,278
Fixed charges:
Interest and debt expense on
all indebtedness 46,370 87,074 41,931
Appropriate portion of
rentals (33%) 1,375 2,537 1,304
Total fixed charges 47,745 89,611 43,235
Earnings available for
fixed charges $ 92,340 $181,203 $ 88,513
Ratio of earnings
to fixed charges 1.93 2.02 2.05
</TABLE>
<PAGE> 10
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(4) (a) Indenture dated as of July 15, 1984,
between Aristar, Inc. and Bank of
Montreal Trust Company, as trustee. (1)
(b) First supplemental indenture to Exhibit
(4) (a) dated as of June 1, 1987. (1)
(c) Indenture dated as of August 15, 1988,
between Aristar, Inc. and Bank of
Montreal Trust Company, as trustee. (2)
(d) Indenture dated as of May 1, 1991
between Aristar, Inc. and Security
Pacific National Bank, as trustee. (3)
(e) Indenture dated as of May 1, 1991
between Aristar, Inc. and The First
National Bank of Boston, as trustee.
(3)
(f) Indenture dated as of July 1, 1992
between Aristar, Inc. and The Chase
Manhattan Bank, N.A., as trustee. (4)
(g) Indenture dated as of July 1, 1992
between Aristar, Inc. and Citibank,
N.A., as trustee. (4)
(h) Indenture dated as of July 1, 1995
between Aristar, Inc. and The Bank of
New York, as trustee.
(i) The registrant hereby agrees to furnish
the Securities and Exchange Commission
upon request with copies of all
instruments defining rights of holders
of long-term debt of Aristar, Inc. and
its consolidated subsidiaries.
(10) (a) Great Western Financial Corporation Income
Tax Allocation Policy. (5)
(b) Amendment Number 1 to Great Western
Financial Corporation Income Tax Allocation
Policy. (5)
(c) Amendment Number 2 to Great Western
Financial Corporation Income Tax Allocation
Policy. (6)
(27) Financial Data Schedule
(1) Incorporated by reference to Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31,
1993, Commission file number 1-3521.
(2) Incorporated by reference to Registrant's Quarterly
Report on Form 10-Q for the quarter ended September
30, 1988, Commission file number 1-3521.
(3) Incorporated by reference to Registrant's Current
Report on Form 8-K dated May 29, 1991, Commission
file number 1-3521.
(4) Incorporated by reference to Registrant's Current
Report on Form 8-K dated June 24, 1992, Commission
file number 1-3521.
<PAGE> 11
(5) Incorporated by reference to Registrant's Annual
Report on Form 10-K for the year ended December 31,
1992, Commission file number 1-3521.
(6) Incorporated by reference to Registrant's Annual
Report on Form 10-K for the year ended December 31,
1993, Commission file number 1-3521.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the period covered by this
report.
<PAGE> 12
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 thereunto duly authorized.
ARISTAR, INC.
Date: August 4, 1995 By: /s/ James A. Bare
James A. Bare
Senior Vice President and
Chief Financial Officer
(Chief Accounting Officer)
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
This Schedule contains summary financial information extracted from the
Company's financial statements filed as part of its Report on Form 10-Q for the
six months ended June 30, 1995 and is qualified in its entirety by reference to
such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> JUN-30-1995
<CASH> 11,064
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 0
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 111,840
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 1,563,782<F1>
<ALLOWANCE> (41,744)
<TOTAL-ASSETS> 1,745,287
<DEPOSITS> 0
<SHORT-TERM> 285,286
<LIABILITIES-OTHER> 52,000
<LONG-TERM> 937,717
<COMMON> 1
0
0
<OTHER-SE> 406,840
<TOTAL-LIABILITIES-AND-EQUITY> 1,745,287
<INTEREST-LOAN> 154,053
<INTEREST-INVEST> 3,780
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 157,833
<INTEREST-DEPOSIT> 0
<INTEREST-EXPENSE> 46,370
<INTEREST-INCOME-NET> 111,463
<LOAN-LOSSES> 19,830
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 61,068
<INCOME-PRETAX> 44,595
<INCOME-PRE-EXTRAORDINARY> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 26,937
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<YIELD-ACTUAL> 10.96
<LOANS-NON> 18,860
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 41,311
<CHARGE-OFFS> (27,716)
<RECOVERIES> 7,979
<ALLOWANCE-CLOSE> 41,744
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 41,744
<FN>
<F1>Aristar, Inc. is technically c Commercial and Industrial Company subject to
Article 5 of Regulation S-X. However, as its primary business is consumer
finance, the Company, although not a bank holding company, is engaged in
similar lending activities. Therefore, in accordance with Staff Accounting
Bulletin Topic 11-K, "Application of Article 9 and Guide 3," the Company has
prepared its Financial Data Schedule for the six months ended June 30, 1995
using the Article 9 format.
</FN>
</TABLE>
Exhibit 4(h)
-----------------------------------------------------------
ARISTAR, INC.
and
THE BANK OF NEW YORK,
as Trustee
-------------------
Senior Debt Securities
-------------------
Indenture
-------------------
Dated as of July 1, 1995
-------------------
-----------------------------------------------------------
<PAGE>
INDENTURE, dated as of July 1, 1995 (the
"Indenture"), between ARISTAR, INC., a corporation
duly organized and existing under the laws of the
State of Delaware (herein called the "Company"),
having its principal office at 8900 Grand Oak Circle,
Tampa, Florida 33637-1050, and THE BANK OF NEW YORK,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of
this Indenture to provide for the issuance from time to time of
its unsecured
debentures, notes or other obligations for money so borrowed
(herein called
the
"Securities"), to be issued in one or more series as in this
Indenture
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed,
for
the equal and proportionate benefit of all Holders of the
Securities or of any
series thereof, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles I through XIV of the Aristar, Inc.
Standard
Multiple-Series Indenture Provisions dated as of July 1, 1995
(herein called
the
"Standard Provisions"), a copy of which is attached hereto as
Annex "A", are
hereby incorporated herein by reference with the same force and
effect as
though
fully set out herein.
PARAGRAPH B. ADDITIONAL PROVISIONS
1. Section 202 of the Standard Provisions is hereby
amended by
deleting the words "[full name of Trustee]" on the sixth line
thereof,
and inserting the words "The Bank of New York".
<PAGE>
2. The following provision, which constitutes
part of this
Indenture, is numbered to conform with the format of the
Standard
Provisions.
SECTION 615. Corporate Trust Office. At the date
of
this Indenture, the Corporate Trust Office of the Trustee is
located at 101 Barclay Street, Floor 21 West, New York, New York
10286.
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.
ARISTAR, INC.
By: /s/ MICHAEL H.CLAWSON
[SEAL] Vice President
Attest:
/s/ STEPHEN F. ADAMS
Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ VIVIAN GEORGES
Title: Authorized
Signatory
[SEAL]
Attest:
/s/ HELEN M. COTRAUIX
Title: Vice President
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 5th day of June, 1995, before me
personally came
Michael H. Clawson, to me known, who, being by me duly sworn, did
depose and
say
that he is Vice President of ARISTAR, INC., one of the
corporations described
in
and which executed the foregoing instrument; that he knows the
seal of said
corporation; that the seal affixed to said instrument is such
corporate seal;
that it was so affixed by authority of the Board of Directors of
said
corporation, and that he signed his name thereto by like
authority.
/s/ MARIE WOLFE
Comm. # 974090
Notary Public California
Los Angeles County
My Comm. Expires Sept. 24, 1995
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of June, 1995, before me personally
came Vivian
Georges, to me known, who, being by me duly sworn, did depose and
say that he
is Assistant Vice President of THE BANK OF NEW YORK, one of the
corporations
described in and which executed the foregoing instrument; that he
knows the
seal
of said corporation; that the seal affixed to said instrument is
such
corporate
seal; that it was so affixed by authority of the Board of
Directors of said
corporation, and that he signed his name thereto by like
authority.
/s/ WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 1996
<PAGE>
Annex A
ARISTAR, INC.
-----------------------------
Standard Multiple-Series
Indenture Provisions
-----------------------------
Dated as of July 1, 1995
-----------------------------
<PAGE>
ARISTAR, INC.
Reconciliation and Tie Between Trust Indenture Act of 1939 and
Standard Multiple-Series Indenture Provisions1
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . Not
Applicable
(a)(4) . . . . . . . . . . . . . Not
Applicable
(b) . . . . . . . . . . . . . 608
610
ss.311(a) . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . 613
ss.312(a) . . . . . . . . . . . . .. 701
702(a)
(b) . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . 702(c)
ss.313(a) . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . 703(b)
ss.314(a) . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . 1005
(b) . . . . . . . . . . . . . Not
Applicable
(c)(1) . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . Not
Applicable
(d) . . . . . . . . . . . . . Not
Applicable
(e) . . . . . . . . . . . . . 102
ss.315(a) . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . 514
ss.316(a) . . . . . . . . . . . . . 601
(a)(1)(A) . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . Not
Applicable
(b) . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . 104(g)
ss.317(a)(1) . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . 1003
ss. 318(a) . . . . . . . . . . . . . 107
--------
1 This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS**
Page
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions............................................ 1
SECTION 102. Compliance Certificates and Opinions................... 8
SECTION 103. Form of Documents Delivered to Trustee................. 9
SECTION 104. Acts of Holders; Record Dates.......................... 10
SECTION 105. Notices, etc., to Trustee and Company.................. 12
SECTION 106. Notice to Holders; Waiver.............................. 12
SECTION 107. Conflict with Trust Indenture Act...................... 13
SECTION 108. Effect of Headings and Table of Contents............... 13
SECTION 109. Successors and Assigns................................. 13
SECTION 110. Separability Clause.................................... 13
SECTION 111. Benefits of Indenture.................................. 14
SECTION 112. Governing Law.......................................... 14
SECTION 113. Legal Holidays......................................... 14
SECTION 114. Language of Notices, Etc............................... 14
SECTION 115. Counterparts........................................... 14
ARTICLE II
Security Forms
SECTION 201. Forms Generally........................................ 14
SECTION 202. Form of Trustee's Certificate of
Authentication................................. 15
SECTION 203. Securities in Global Form.............................. 15
ARTICLE III
The Securities
SECTION 301. Amount Unlimited; Issuable in Series................... 16
SECTION 302. Denominations.......................................... 19
SECTION 303. Execution, Authentication, Delivery
and Dating..................................... 20
SECTION 304. Temporary Securities................................... 22
SECTION 305. Registration, Registration of
Transfer and Exchange.......................... 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen
--------
** This table of contents shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
Securities.............................................30
SECTION 307. Payment of Interest; Interest Rights
Preserved..................................... 31
SECTION 308. Persons Deemed Owners................................. 32
SECTION 309. Cancellation.......................................... 33
SECTION 310. Computation of Interest............................... 33
SECTION 311. Manner of Payments in Respect of
Securities.................................... 34
SECTION 312. Compliance with Certain Laws and
Regulations................................... 34
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
Indenture..................................... 35
SECTION 402. Application of Trust Money............................ 36
SECTION 403. Satisfaction, Discharge and
Defeasances of Securities of Any
Series........................................ 36
SECTION 404. Reinstatement......................................... 37
SECTION 405. Definitions........................................... 38
ARTICLE V
Remedies
SECTION 501. Events of Default..................................... 39
SECTION 502. Acceleration of Maturity; Rescission
and Annulment................................. 40
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.................... 41
SECTION 504. Trustee May File Proofs of Claim...................... 42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities...................... 43
SECTION 506. Application of Money Collected........................ 43
SECTION 507. Limitation on Suits................................... 43
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest....... 44
SECTION 509. Restoration of Rights and Remedies.................... 44
SECTION 510. Rights and Remedies Cumulative........................ 44
SECTION 511. Delay or Omission Not Waiver.......................... 45
SECTION 512. Control by Holders.................................... 45
SECTION 513. Waiver of Past Defaults............................... 45
SECTION 514. Undertaking for Costs................................. 46
<PAGE>
ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities................... 46
SECTION 602. Notice of Defaults.................................... 47
SECTION 603. Certain Rights of Trustee............................. 47
SECTION 604. Not Responsible for Recitals or
Issuance of Securities........................ 49
SECTION 605. May Hold Securities................................... 49
SECTION 606. Money Held in Trust................................... 49
SECTION 607. Compensation and Reimbursement........................ 49
SECTION 608. Disqualification; Conflicting Interests............... 50
SECTION 609. Corporate Trustee Required; Eligibility............... 50
SECTION 610. Resignation and Removal; Appointment of
Successor..................................... 50
SECTION 611. Acceptance of Appointment by Successor................ 52
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business........................ 53
SECTION 613. Preferential Collection of Claims
Against Company............................... 53
SECTION 614. Appointment of Authenticating Agent................... 53
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company To Furnish Trustee Names and
Addresses of Holders.......................... 55
SECTION 702. Preservation of Information;
Communications to Holders..................... 56
SECTION 703. Reports by Trustee.................................... 56
SECTION 704. Reports by Company.................................... 57
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms......................... 57
SECTION 802. Successor Corporation Substituted..................... 58
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders............................ 58
SECTION 902. Supplemental Indentures With Consent
of Holders.................................... 60
SECTION 903. Execution of Supplemental Indentures.................. 61
<PAGE>
SECTION 904. Effect of Supplemental Indentures..................... 61
SECTION 905. Conformity With Trust Indenture Act................... 62
SECTION 906. Reference in Securities to
Supplemental Indentures....................... 62
ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest................................. 62
SECTION 1002. Maintenance of Office or Agency...................... 62
SECTION 1003. Money for Securities Payments to be
Held in Trust....................................... 64
SECTION 1004. Additional Amounts................................... 65
SECTION 1005. Statement as to Compliance........................... 66
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article............................. 66
SECTION 1102. Election to Redeem; Notice to Trustee................ 67
SECTION 1103. Selection by Trustee of Securities
to be Redeemed...................................... 67
SECTION 1104. Notice of Redemption................................. 68
SECTION 1105. Deposit of Redemption Price.......................... 69
SECTION 1106. Securities Payable on Redemption Date................ 69
SECTION 1107. Security Redeemed in Part............................ 70
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of Article............................. 70
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities............................ 71
SECTION 1203. Redemption of Securities for
Sinking Fund........................................ 71
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called............ 72
SECTION 1302. Call, Notice and Place of Meetings................... 72
SECTION 1303. Persons Entitled To Vote at Meetings................. 72
SECTION 1304. Quorum; Action....................................... 73
SECTION 1305. Determination of Voting Rights; Conduct
and Adjournment of Meetings......................... 74
SECTION 1306. Counting Votes and Recording Action
of Meetings......................................... 75
<PAGE>
ARTICLE XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. Immunity of Incorporators,
Stockholders, Officers and Directors................ 75
ARTICLE XV
Subordination
SECTION 1501. Agreement to Subordinate............................. 76
SECTION 1502. No Payments to Holders of Securities
in Certain Circumstances................. 76
SECTION 1503. Payments by Trustee or Holders of
Securities to Holders of Senior Debt..... 78
SECTION 1504. Subrogation.......................................... 78
SECTION 1505. Obligation of Company Unconditional.................. 79
SECTION 1506. Payments on Securities Permitted..................... 80
SECTION 1507. Effectuation of Subordination by Trustee............. 80
SECTION 1508. Knowledge of Trustee................................. 80
SECTION 1509. Trustee May Hold Senior Debt......................... 81
SECTION 1510. Rights of Holders of Senior Debt
Not Impaired........................................ 81
SECTION 1511. Rights and Obligations Subject to
Power of Court...................................... 81
SECTION 1512. Definitions.......................................... 81
EXHIBIT A - FORMS OF CERTIFICATION
EXHIBIT A.1 - FORM OF CERTIFICATE TO BE GIVEN
BY PERSON ENTITLED TO RECEIVE BEARER
SECURITY OR TO OBTAIN INTEREST PRIOR TO
AN EXCHANGE DATE
EXHIBIT A.2 - FORM OF CERTIFICATE TO BE GIVEN
BY EURO-CLEAR OR CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PRIOR
TO AN EXCHANGE DATE
<PAGE>
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include
the
plural as well as the singular;
(2) all other terms used herein which are defined
in the Trust
Indenture Act, either directly or by reference therein,
have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the
meanings assigned to them in accordance with generally
accepted
accounting principles, and, except as otherwise herein
expressly
provided, the term "generally accepted accounting
principles" with
respect to any computation required or permitted
hereunder shall mean
such accounting principles as are generally accepted at
the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder"
and other
words of similar import refer to this Indenture as a
whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally within an Article
of this
Indenture, may be defined in that Article.
"Act", when used with respect to any Holder, has the
meaning
specified in Section 104.
"Affiliate" of any specified Person means any other
Person
directly or indirectly controlling or controlled by or under
direct or
indirect
common control with such specified Person. For the purposes of
this
definition,
"control" when used with respect to any specified Person means
the power to
direct the management and policies of such Person, directly or
indirectly,
whether through the ownership of voting securities, by contract
or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the
foregoing.
"Authenticating Agent" means any Person authorized
by the
Trustee pursuant to Section 614 to act on behalf of the Trustee
to
authenticate
securities of one or more series.
<PAGE>
"Authorized Newspaper" means a newspaper of
general
circulation in the place of publication, printed in the official
language of
the
country of publication and customarily published on each Business
Day, whether
or not published on Saturdays, Sundays or holidays. Whenever
successive weekly
publications in an Authorized Newspaper are authorized or
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 in the form of a
bearer
security established pursuant to Section 301 which is payable
to bearer and
is
not a Registered Security (including without limitation
any Security
in
temporary or definitive global bearer form).
"Board of Directors" means either the board of
directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution
certified by
the Secretary or an Assistant Secretary of the Company to have
been duly
adopted
by the Board of Directors and to be in full force and effect on
the date of
such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment
or place of publication, means each Monday, Tuesday, Wednesday,
Thursday and
Friday which is not a day on which banking institutions in that
Place of
Payment
or place of publication are authorized or obligated by or
pursuant to law,
regulation or executive order to close or as specified for a
series of
Securities pursuant to Section 301 or as specified for any
Security in such
Security.
"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 instrument
such
Commission
is not existing and performing the duties now assigned to it
under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first
paragraph of this instrument until a successor corporation shall
have become
such pursuant to the applicable provisions of this Indenture, and
thereafter
"Company" shall mean such successor corporation.
"Company Request", "Request of the Company", "Company
Order"
or "Order of the Company" means a written request or order signed
in the name
of
the Company by its Chairman of the Board, its President or a Vice
President,
and
by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant
Controller, its Secretary or an Assistant Secretary, and
delivered to the
Trustee.
<PAGE>
"Consolidated Subsidiary" means every Subsidiary
which does
not transact any substantial portion of its business or regularly
maintain any
substantial portion of its operating assets outside the United
States or
Canada
other than (i) a Subsidiary acquired or organized after the date
of this
Indenture which, prior to the date of acquisition or
organization, shall have
been classified by resolution of the Board of Directors or
Executive Committee
of the Board of Directors of the Company as an Unconsolidated
Subsidiary
unless
and until the Board of Directors or Executive Committee of the
Board of
Directors of the Company shall by resolution reclassify such
Subsidiary as a
Consolidated Subsidiary; and (ii) any Subsidiary of an
Unconsolidated
Subsidiary; provided, however, that an Unconsolidated Subsidiary
shall not be
a
successor, directly or indirectly, to any Consolidated
Subsidiary.
"Corporate Trust Office" means the office of the
Trustee in
The City of New York at which at any particular time its
corporate trust
business shall be administered, which office at the date hereof
is that
indicated in Section 615 of this Indenture, except that with
respect to the
presentation of Securities (or Coupons, if any, representing an
installment of
interest) for payment or for registration of transfer and
exchange, such term
shall mean the office or the agency of the Trustee in said city
at which at
any
particular time its corporate agency business shall be conducted.
"corporation" includes corporations, associations,
companies and business trusts.
"Coupon" or "coupon" means any interest coupon
appertaining to a Bearer Security.
"Debt" means indebtedness of the Company or any
Consolidated
Subsidiary representing money borrowed (which term shall include
evidences of
indebtedness representing extensions of credit whether or not
representing
obligations for money borrowed), except indebtedness owed to the
Company by
any
Consolidated Subsidiary or owed to any Consolidated Subsidiary by
the Company
or
any other Consolidated Subsidiary, and shall include indebtedness
of any other
person for money borrowed when such indebtedness is guaranteed by
the Company
or
any Consolidated Subsidiary. The term "Debt" shall be deemed to
include the
liability of the Company or any Consolidated Subsidiary in
respect of
any
investment or similar certificate, except to the extent such
certificates are
pledged by purchasers as collateral for, and are offset by,
receivables.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Securities
of any
series issuable or issued in whole or in part in the form of one
or more
Global
Securities, the Person designated as Depositary by the Company
pursuant to
Section 301 until a successor Depositary shall have become such
pursuant
to the applicable provisions of this Indenture, and thereafter
"Depositary"
shall mean or include each Person who is then a Depositary
hereunder, and if
at
any time there is more than one such Person, "Depositary" as used
with
respect to the Securities of any such series shall mean the
Depositary
with respect to the Securities of that series.
"Dollar" means the coin or currency of the United
States of
America as at the time of payment is legal tender for the payment
of public
and
private debts.
"Euro-clear" means the operator of the Euro-clear
System.
"Event of Default" has the meaning specified in Section
501.
"Global Security" or "global Security" means a
Registered or
Bearer Security evidencing all or part of a series of Securities
issued to the
Depositary for such series in accordance with Section 303.
"Holder" or "holder" means, with respect to a
Registered
Security, the Person in whose name at the time a particular
Registered
Security
is registered in the Security Register and, with respect to a
Bearer Security
and/or Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed
or as
it may from time to time be supplemented or amended by one or
more indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof,
including, for all purposes of this instrument and any such
supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a
part of and govern this instrument and any such supplemental
indenture,
respectively. The term "Indenture" shall also include the terms
of particular
series of Securities established as contemplated by Section 301.
"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
Stated
Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Officers' Certificate" means a certificate signed by
<PAGE>
the Chairman of the Board, the President or any Vice President,
and by the
Treasurer, the Controller, the Secretary or any Assistant
Treasurer, Assistant
Controller or Assistant Secretary, of the Company, and delivered
to the
Trustee.
Each such Officers' Certificate shall contain the statements
provided in
Section
102, if applicable.
"Opinion of Counsel" means a written opinion of
counsel, who
may be counsel for or an employee of the Company and who shall be
acceptable
to
the Trustee. Each Opinion of Counsel shall contain the statements
provided in
Section 102, if applicable.
"Original Issue Discount Security" means any Security
which
provides for an amount less than the principal amount thereof to
be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to
Section 502.
"Outstanding" or "outstanding", when used with
respect to
Securities, means, as of the date of determination, all
Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in
the necessary amount has been theretofore deposited with
the Trustee or
any Paying Agent (other than the Company) in trust or set
aside and
segregated in trust by the Company (if the Company shall
act as its own
Paying Agent) for the Holders of such Securities; provided
that, if
such Securities are to be redeemed, notice of such
redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to
Section
306 or in exchange for or in lieu of which other
Securities have been
authenticated and delivered pursuant to this Indenture,
other than any
such Securities in respect of which there shall have been
presented to
the Trustee proof satisfactory to it that such Securities
are held by a
bona fide purchaser in whose hands such Securities
are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite
principal amount of the Outstanding Securities have given any
request, demand,
authorization, direction, notice, consent or waiver hereunder or
whether a
quorum is present at a meeting of Holders of Outstanding
Securities or the
number of votes entitled to be cast by each Holder of a Security
in respect of
such Security at any such meeting (i) the principal amount of an
Original
Issue
Discount Security that shall be deemed to be Outstanding for such
purposes
shall
be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 502, and (ii) Securities owned by the Company or any
other
obligor upon the Securities or any Affiliate of the Company or of
such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in
determining whether the Trustee shall be protected in relying
upon any such
request, demand, authorization, direction, notice, consent or
waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded.
Securities so owned which have been pledged in good faith may be
regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee
is not the Company or any other obligor upon the Securities or
any Affiliate
of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the
Company to
pay the principal of (and premium, if any) or interest, if any,
on any
Securities on behalf of the Company.
"Person" or "person" means any individual,
corporation,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political
subdivision thereof.
"Place of Payment", when used with respect to the
Securities
of any series, means the place or places where the principal of
(and premium, if any) and interest, if any, on the Securities of
that
series are payable as specified in accordance with Section 301.
"Predecessor Security" of any particular Security means
every
previous Security evidencing all or a portion of the same debt as
that
evidenced by such particular Security; and, for the purposes of
this
definition,
any Security authenticated and delivered under Section 306 in
exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any
Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this
Indenture.
"Redemption Price", when used with respect to any
Security to
be redeemed, means the price at which it is to be redeemed
pursuant to this
Indenture.
"Registered Security" means any Security in the
form of a
registered security established pursuant to Section 301 which is
registered in
the Security Register as to principal and any interest (including
without
limitation any Security in temporary or definitive global
registered form).
<PAGE>
"Regular Record Date" for the interest payable on any
Interest
Payment Date on the Registered Securities of any series means the
date
specified
for that purpose as contemplated by Section 301, which date shall
be, unless
otherwise specified pursuant to Section 301, the fifteenth day
preceding such
Interest Payment Date, whether or not such day shall be a
Business Day.
"Responsible Officer", when used with respect to the
Trustee,
means the chairman or any vice chairman of the board of
directors, the
chairman
or any vice chairman of the executive committee of the board of
directors, the
chairman of the trust committee, the president, any vice
president, the
secretary, any assistant secretary, the treasurer, any assistant
treasurer,
the
cashier, any assistant cashier, any trust officer or assistant
trust officer,
the controller or any assistant controller or any other officer
of the Trustee
customarily performing functions similar to those performed by
any of the
above
designated officers and also means, with respect to a particular
corporate
trust
matter, any other officer to whom such matter is referred because
of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first
recital of
this Indenture and more particularly means any Securities
authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar"
have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any
Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any
Security (or
Coupon, if any, representing an installment of interest) or any
installment of
principal thereof or interest thereon, means the date specified
in such
Security
(or Coupon) as the fixed date on which the principal of such
Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority
of the
outstanding voting stock of which shall at the time be owned,
directly or
indirectly, by the Company or by one or more Subsidiaries or by
the Company
and
one or more Subsidiaries. For the purposes of this definition,
"voting stock",
as applied to the stock (or the equivalent thereof, in the case
of
corporations
incorporated outside the continental limits of the United States)
of any
corporation, means stock (or such equivalent) of any class or
classes, however
designated, having ordinary voting power for the election of at
least a
majority
of the members of the board of directors (or other governing
body) of such
corporation, other than stock (or such equivalent) having such
power only by
reason of the happening of a contingency.
<PAGE>
"Trustee" means the Person named as the "Trustee" in the
first
paragraph of this instrument until a successor Trustee shall have
become such
pursuant to the applicable provisions of this Indenture, and
thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder,
and
if at any time there is more than one such Person, "Trustee" as
used with
respect to the Securities of any series shall mean the Trustee
with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of
1939,
as amended, as in force at the date as of which this instrument
was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is
amended
after such date, "Trust Indenture Act" means, to the extent
required by any
such
amendment, the Trust Indenture Act of 1939 as so amended.
"Unconsolidated Subsidiary" means any subsidiary other
than a Consolidated Subsidiary.
"United States" means the United States of America
(including
the States and the District of Columbia), its territories, its
possessions,
the
Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
"Vice President", when used with respect to the Company
or the
Trustee, means any vice president, whether or not designated by a
number or a
word or words added before or after the title "vice president".
"Yield to Maturity", when used with respect to any
Original
Issue Discount Security, means the annual yield to maturity, if
any, set forth
on the face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any
application or request by the Company to the Trustee to take any
action under
any provision of this Indenture, the Company shall furnish to the
Trustee an
Officers' Certificate stating that all conditions precedent, if
any, provided
for in this Indenture relating to the proposed action have been
complied with
and an Opinion of Counsel stating that in the opinion of such
counsel all such
conditions precedent, if any, have been complied with, except
that in the case
of any such application or request as to which the furnishing of
such
documents
is specifically required by any provision of this Indenture
relating to such
particular application or request, no additional certificate or
opinion need
be
furnished.
Every certificate or opinion with respect to compliance
with a
condition or covenant provided for in this Indenture, except the
certificate
of
destruction pursuant to Section 309, shall include
(1) a statement that each individual signing such
certificate
or opinion has read such covenant or condition and the
definitions
herein relating thereto;
<PAGE>
(2) a brief statement as to the nature and scope
of the
examination or investigation upon which the statements
or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual,
he has made such examination or investigation as is
necessary to
enable
him to express an informed opinion as to whether or not
such
covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such
individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any
case where several matters are required to be certified by, or
covered by an
opinion of, any specified Person, it is not necessary that all
such matters be
certified by, or covered by the opinion of, only one such Person,
or that they
be so certified or covered by only one document, but one such
Person may
certify
or give an opinion with respect to some matters and one or more
other such
Persons as to other matters, and any such Person may certify or
give an
opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company
may be
based, insofar as it relates to legal matters, upon a certificate
or opinion
of,
or representations by, counsel, unless such officer knows, or in
the exercise
of
reasonable care should know, that the certificate or opinion or
representations
with respect to the matters upon which his certificate or opinion
is based are
erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as
it relates to factual matters, upon a certificate or opinion of,
or
representations by, an officer or officers of the Company stating
that the
information with respect to such factual matters is in the
possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care
should
know, that the certificate or opinion or representations with
respect to such
matters are erroneous.
Where any Person is required to make, give or execute
two or
more applications, requests, consents, certificates, statements,
opinions or
other instruments under this Indenture, they may, but need not,
be
consolidated
and form one instrument.
SECTION 104. Acts of Holders; Record Dates. (a) Any
request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by
<PAGE>
Holders of such series may, alternatively, be embodied in and
evidenced by the
record of Holders of Securities of such series voting in favor
thereof, either
in person or by proxies duly appointed in writing, at any meeting
of Holders
of
Securities of such series duly called and held in accordance with
the
provisions
of Article XIII, or a combination of such instruments and any
such record.
Except as herein otherwise expressly provided, such action shall
become
effective when such instrument or instruments 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 or so voting at any such meeting. 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 (subject to Section 601) conclusive
in favor of
the Trustee and the Company, if made in the manner provided in
this Section.
The
record of any meeting of Holders of Securities shall be proved in
the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person
of any
such instrument or writing may be proved by the affidavit of a
witness of such
execution or by a certificate of a notary public or other officer
authorized
by
law to take acknowledgments of deeds, certifying that the
individual signing
such instrument or writing acknowledged to him the execution
thereof. Where
such
execution is by a signer acting in a capacity other than his
individual
capacity, such certificate or affidavit shall also constitute
sufficient proof
of his authority. The fact and date of the execution of any such
instrument or
writing, or the authority of the Person executing the same, may
also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same,
may be proved
by the production of such Bearer Securities or by certificate
executed by any
trust company, bank, banker or other depositary, wherever
situated, 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 (1) another certificate or
affidavit bearing a
later date issued in respect of the same Bearer Security is
produced, (2) such
Bearer Security is produced to the Trustee by some other Person,
(3) such
Bearer
Security is surrendered in exchange for a Registered Security or
(4) such
Bearer
Security is no longer Outstanding.
(d) The fact and date of execution of any such
instrument or
writing pursuant to clause (c) above, the authority of the Person
executing
the
same and the principal amount and
<PAGE>
serial numbers of Bearer Securities held by the Person so
executing such
instrument or writing and the date of holding the same may also
be proved in
any
other manner which the Trustee deems sufficient; and the Trustee
may in any
instance require further proof with respect to any of the matters
referred to
in this clause.
(e) The principal amount and serial numbers of
Registered
Securities held by any Person and the date of holding the same
shall be proved
by the Security Register.
(f) Any request, demand, authorization, direction,
notice,
consent, waiver or other Act of a Holder shall bind every future
Holder of the
same Security and/or Coupon and the Holder of every Security
and/or Coupon
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 and/or Coupon.
(g) If the Company shall solicit from the Holders any
request,
demand, authorization, direction, notice, consent, waiver or
other Act, or in
the circumstances permitted by the Trust Indenture Act, the
Company may, at
its
option, by or pursuant to a Board Resolution, fix in advance a
record date for
the determination of Holders entitled to give such request,
demand,
authorization, direction, notice, consent, waiver or other Act,
but the
Company
shall have no obligation to do so. Where the Company does not fix
a record
date
prior to the first solicitation of a Holder made by any Person in
respect of
any
such Act, the record date for any such Act shall be the 30th day
(or, if
later,
the date of the most recent list of Holders required to be
provided pursuant
to
Section 701) prior to such first solicitation. With regard to any
record date,
any request, demand, authorization, direction, notice, consent,
waiver or
other
Act may be given before or after such record date, but only the
Holders of
record at the close of business on such record date shall be
deemed to be
Holders for the purposes of determining whether Holders of the
requisite
proportion of Outstanding Securities have authorized or agreed or
consented to
such request, demand, authorization, direction, notice, consent,
waiver or
other
Act, and for that purpose the Outstanding Securities shall be
computed as of
such record date; provided that no such authorization, agreement
or consent by
the Holders on such record date shall be deemed effective unless
it shall
become
effective pursuant to the provisions of this Indenture not later
than six
months
after the record date.
SECTION 105. Notices, etc., to Trustee and
Company. Any
request, demand, authorization, direction, notice, consent,
waiver or Act of
Holders or other document provided or permitted by this Indenture
to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall
be made, given, furnished or filed in writing to or with the
Trustee at
its Corporate Trust Office and unless otherwise herein
expressly
provided, any such document shall be deemed to be
sufficiently made,
given, furnished or filed upon its receipt by a Responsible
Officer of
the Trustee, or
(2) the Company by the Trustee or by any Holder
shall be
sufficient for every purpose hereunder (unless
otherwise herein
expressly provided) if in writing and mailed,
first-class postage
prepaid, to the Company addressed to it at the address of
its principal
office specified in the first paragraph of this
instrument or at any
other address previously furnished in writing to the
Trustee by the
Company, Attention: Secretary.
SECTION 106. 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 shall be sufficiently
given
(unless
otherwise herein expressly provided) if in writing
and mailed,
first-class postage prepaid, to each Holder affected by
such event,
at
his address as it appears in the Security 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, such notice shall be sufficiently
given (unless
otherwise herein expressly provided or unless
otherwise specified
in
such Securities) if published once in an Authorized
Newspaper in New
York City and London and mailed to such Persons whose
names and
addresses were previously filed with the Trustee, within
the time
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail
service or
by reason of any other cause it shall be impracticable to give
such notice to
Holders by mail, then such notification as the Company shall
direct the
Trustee
in writing to give shall constitute a sufficient notification for
every
purpose
hereunder. 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.
In case by reason of the suspension of publication
of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause
it
shall be impracticable to publish any notice to Holders of Bearer
Securities
as
provided above, then such notification to Holders of Bearer
Securities as the
Company shall direct the Trustee in writing to give shall
constitute
sufficient
notice to such Holders for every purpose hereunder. Neither the
failure to
give
notice by publication to Holders of Bearer Securities as provided
above, nor
any
defect in any notice so published, shall affect the sufficiency
of any notice
to
Holders of Registered Securities given as provided herein.
<PAGE>
Where this Indenture provides for notice in any manner,
such
notice may be waived in writing by the Person entitled to receive
such notice,
either before or after the event, and such waiver shall be the
equivalent of
such notice. Waivers of notice by Holders of Securities shall be
filed with
the
Trustee, but such filing shall not be a condition precedent to
the validity of
any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act. This
Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be a part of this
Indenture. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is
required under such 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.
SECTION 108. Effect of Headings and Table of
Contents. The
Article and Section headings herein and the Table of Contents are
for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants
and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause. In case any
provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable,
the validity, legality and enforceability of the remaining
provisions shall
not
in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this
Indenture
or in the Securities or Coupons, express or implied, shall give
to any Person,
other than the parties hereto and their successors hereunder and
the Holders,
any benefit or any legal or equitable right, remedy or claim
under this
Indenture.
SECTION 112. Governing Law. This Indenture and the
Securities
and Coupons shall be governed by and construed in accordance with
the laws of
the State of New York, without regard to conflicts of laws
provisions thereof.
SECTION 113. Legal Holidays. Except as otherwise
specified as
contemplated by Section 301, in any case where any Interest
Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a
Business Day
at any Place of Payment, then (notwithstanding any other
provision of this
Indenture or of the Securities or Coupons, if any) payment of
interest or
principal (and premium, if any) need not be made at such Place of
<PAGE>
Payment on such date, but may be made on the next succeeding
Business Day at
such Place of Payment with the same force and effect as if made
on the
Interest
Payment Date or Redemption Date, or at the Stated Maturity,
provided that no
interest shall accrue for the period from and after such Interest
Payment
Date,
Redemption Date or Stated Maturity, as the case may be, to the
next succeeding
Business Day at such Place of Payment.
SECTION 114. Language of Notices, Etc. Any request,
demand,
authorization, direction, notice, consent or waiver required or
permitted
under
this Indenture shall be in the English language, except that any
published
notice may be in an official language of the country of
publication.
SECTION 115. Counterparts. This Indenture may be
executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
ARTICLE II
Security Forms
SECTION 201. Forms Generally. The Securities of each
series
and the Coupons, if any, to be attached thereto shall be in
substantially the
forms as shall be established by or pursuant to a Board
Resolution or in one
or
more indentures supplemental hereto, in each case with such
appropriate
insertions, omissions, substitutions and other variations as are
required or
permitted by this Indenture, and may have such letters, numbers
or other marks
of identification and such legends or endorsements placed thereon
as may be
required to comply with the rules of any securities exchange or
as may,
consistently herewith, be determined by the officers executing
such Securities
and Coupons, if any, as evidenced by their execution of the
Securities and
Coupons, if any. If the form of Securities of any series is
established by or
by
action taken pursuant to a Board Resolution, a copy of the Board
Resolution
together with an appropriate record of any action taken pursuant
thereto,
which
Board Resolution or record of such action shall have attached
thereto a true
and
correct copy of the forms of Security approved by or pursuant to
such Board
Resolution, shall be certified by the Secretary or an Assistant
Secretary of
the
Company and delivered to the Trustee at or prior to the delivery
of the
Company
Order contemplated by Section 303 for the authentication and
delivery of such
Securities.
The definitive Securities and Coupons, if any,
shall be
printed, typed, lithographed or engraved on steel engraved
borders or may be
produced in any other manner, all as determined by the officers
executing such
Securities and Coupons, if any, as evidenced by their execution
of such
Securities and Coupons, if any.
<PAGE>
SECTION 202. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated and
issued under the within-mentioned Indenture.
[full name of Trustee],
as Trustee
By
Authorized [Officer] [Signatory]
SECTION 203. Securities in Global Form. If
Securities of a
series are issuable in global form, as specified as contemplated
by Section
301,
then, notwithstanding clause (8) of Section 301 and the
provisions of Section
302, such Security shall represent such of the Outstanding
Securities of such
series as shall be specified therein and may provide that it
shall represent
the
aggregate amount of Outstanding Securities from time to time
endorsed thereon
and that the aggregate amount of Outstanding Securities
represented thereby
may
from time to time be reduced to reflect exchanges. Any
endorsement of a
Security
in global form to reflect the amount, or any increase or decrease
in the
amount,
of Outstanding Securities represented thereby shall be made by
the Trustee in
such manner and upon instructions given by such Person or Persons
as shall be
specified therein or in the Company Order to be delivered to the
Trustee
pursuant to Section 303 or Section 304. Subject to the provisions
of Section
303
and, if applicable, Section 304, the Trustee shall deliver and
redeliver any
Security in definitive global bearer form in the manner and upon
written
instructions given by the Person or Persons specified therein or
in the
applicable Company Order. If a Company Order pursuant to Section
303 or 304
has
been, or simultaneously is, delivered, any instructions by the
Company with
respect to endorsement or delivery or redelivery of a Security in
global form
shall be in writing but need not comply with Section 102 and need
not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of the eighth
paragraph of
Section 303 shall apply to any Security represented by a Security
in global
form
if such Security was never issued and sold by the Company and the
Company
delivers to the Trustee the Security in global form together with
written
instructions (which need not comply with Section 102 and need not
be
accompanied
by an Opinion of Counsel) with regard to the reduction in the
principal amount
of Securities represented thereby, together with the written
statement
contemplated by the last sentence of the eighth paragraph of
Section 303.
Notwithstanding the provisions of Section 307,
unless
otherwise specified as contemplated by Section 301, payment of
principal of
and
any premium and any interest on any Security in definitive global
shall be made to the Person or Persons specified therein.
<PAGE>
Notwithstanding the provisions of Section 308 and
except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of
the Company and the Trustee shall treat a Person as the Holder of
such
principal
amount of Outstanding Securities represented by a definitive
global Security
as
shall be specified in a written statement of the Holder of such
definitive
global Security or, in the case of a definitive global Security
in bearer
form,
of Euro-clear or CEDEL, S.A. which is produced to the Trustee by
such Person.
ARTICLE III
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one
or more
series. There shall be established in or pursuant to a Board
Resolution, and
set
forth in an Officers' Certificate, or established in one or more
indentures
supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under
this Indenture (except for Securities authenticated and delivered
upon
registration of transfer of, or in exchange for, or in lieu of,
other
Securities of the series pursuant to Section 304, 305, 306, 906
or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of (and
premium,
if any, on) any of the Securities of the series are payable or
the
method of determination thereof and the amount or amounts of any
installment of principal payable on such dates;
(4) the rate or rates, or the method of determination
thereof,
at which any of the Securities of the series shall bear interest,
if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable
and the
Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(5) the place or places where the principal of (and
premium,
if any) and interest, if any, on any of the Securities and
Coupons, if
any, of the series shall be payable and the office or agency for
the
Securities of the series maintained by the Company pursuant to
Section
1002;
(6) the period or periods within which, the price or
prices at
which and the terms and conditions upon which any of the
Securities and
any Coupons of the series may be redeemed, in whole or in part,
at the
option of the Company;
(7) the terms of any sinking fund and the obligation, if
any,
of the Company to redeem or purchase Securities of the series
pursuant
to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price
or
prices at which and the terms and conditions upon which
Securities of
the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000, if
registered, and
$5,000, if bearer, and any integral multiple of the applicable
denominations, the denominations in which the Securities of the
series
shall be issuable;
(9) if other than the principal amount thereof, the
portion of
the principal amount of any of the Securities of the series which
shall
be payable upon declaration of acceleration of the Maturity
thereof
pursuant to Section 502;
(10) the application, if any, of Section 403, or such
other
means of satisfaction and discharge as may be specified for the
Securities and Coupons, if any, for a series;
(11) any deletions or modifications of or additions to the
Events of Default set forth in Section 501 or covenants of the
Company
set forth in Article X pertaining to the Securities of the
series;
(12) the forms of the Securities and Coupons, if any,
of the series;
(13) whether the Securities of the series are to be issued
as
Registered Securities or Bearer Securities (with or without
Coupons),
or a combination thereof, whether Bearer Securities may be
exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series
(if
permitted by applicable laws and regulations) and the
circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any
<PAGE>
Securities of the series are to be issuable initially in
temporary
global form and whether any Securities of the series are to be
issuable
in definitive global form with or without Coupons and, if so,
whether
beneficial owners of interests in any such definitive global
Security
may exchange such interests for Securities of such series and of
like
tenor of any authorized form and denomination and the
circumstances
under which and the place or places where any such exchanges may
occur,
if other than in the manner provided in Section 305;
(14) if the Securities and Coupons, if any, of the series
are
to be issued upon the exercise of warrants, the time, manner and
place
for Securities to be authenticated and delivered;
(15) whether and under what circumstances and with what
procedures and documentation the Company will pay additional
amounts on
any of the Securities and Coupons, if any, of the series to any
Holder
who is not a United States person (including a definition of such
term), in respect of any tax, assessment or other governmental
charge
withheld or deducted from a payment thereon and, if so, whether
the
Company will have the option to redeem such Securities rather
than pay
additional amounts (and the terms of any such option);
(16) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in
whose name that Security (or one or more Predecessor Securities)
is
registered at the close of business on the Regular Record Date
for such
interest, the manner in which, or the Person to whom, any
interest on
any Bearer Security of the series shall be payable, if otherwise
than
upon presentation and surrender of the Coupons appertaining
thereto as
they severally mature and the extent to which, or the manner in
which,
any interest payable on a temporary global Security on an
Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(17) whether the Securities of the series shall be issued
in
whole or in part in the form of one or more Global Securities
and, in
such case, the Depositary for such Global Security or Securities;
and
(18) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of
this
Indenture).
All Securities of any one series and the Coupons
appertaining
to any Bearer Securities of such series shall be substantially
identical
except
as to denomination, the rate or rates of interest, if any, and
the Maturity
and
except as may otherwise be provided in or pursuant to the Board
Resolution
referred to above and (subject to Section 303) set forth in the
<PAGE>
Officers' Certificate referred to above or in any such indenture
supplemental
hereto.
The Securities shall be payable as to principal and
interest,
if any, and any premium payable upon the redemption thereof in
Dollars. At the
option of the Company, interest on the Registered Securities of
any series
that
bears interest may be paid by mailing a check to the address of
any Holder as
such address shall appear in the Securities Register.
If any of the terms of the Securities of any
series are
established by action taken pursuant to a Board Resolution, a
copy of an
appropriate record of such action together with such Board
Resolution shall be
certified by the Secretary or an Assistant Secretary of the
Company and
delivered to the Trustee at or prior to the delivery of the
Officers'
Certificate setting forth the terms of the Securities of such
series.
SECTION 302. Denominations. The Securities of each
series
shall be issuable in such denominations as shall be specified as
contemplated
by
Section 301. In the absence of any such provisions with respect
to the
Securities of any series, the Securities of such series shall be
issuable in
denominations of $1,000, if registered, and $5,000, if bearer,
and in any
integral multiple of the applicable denominations. Securities of
each series
shall be numbered, lettered or otherwise distinguished in such
manner or in
accordance with such plan as the officers of the Company
executing the same
may
determine with the approval of the Trustee.
SECTION 303. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed in the name and on behalf of the
Company by
manual or facsimile signatures of its Chairman of the Board, its
President or
any of its Vice Presidents, under its corporate seal reproduced
thereon
attested
by the manual or facsimile signature of its Secretary or one of
its Assistant
Secretaries. Any Coupons shall be executed on behalf of the
Company by the
manual or facsimile signature of any such officer of the Company.
Securities and Coupons bearing the manual or
facsimile
signatures of individuals who were at any time the proper
officers of the
Company shall bind the Company, notwithstanding that such
individuals or any
of
them have ceased to hold such offices prior to the authentication
and delivery
of such Securities or did not hold such offices at the date of
such
Securities.
At any time and from time to time after the
execution and
delivery of this Indenture, the Company may deliver Securities of
any series,
together with any Coupons appertaining thereto, executed by the
Company to the
Trustee for authentication, together with a Company Order for the
authentication
and delivery of such Securities, and the Trustee in accordance
with the
Company
Order shall authenticate and
<PAGE>
deliver such Securities; provided, however, that, in connection
with the sale
of
a Bearer Security during the "restricted period" as defined in
United States
Treasury regulation section 1.163- 5(c)(2)(i)(D)(7), no Bearer
Security shall
be
mailed or otherwise delivered to any location in the United
States; and
provided, further, that a definitive Bearer Security sold during
the
restricted
period may be delivered only outside the United States and only
if the Person
entitled to receive such definitive Bearer Security shall have
furnished a
certificate in the form set forth in Exhibit A.1 to this
Indenture, dated no
earlier than 15 days prior to the earlier of the date on which
such definitive
Bearer Security is delivered and the date on which any temporary
bearer Global
Security first becomes exchangeable for such definitive Bearer
Security in
accordance with the terms of such temporary Security and this
Indenture.
Except
as permitted by Section 306, the Trustee shall not authenticate
and deliver
any
Bearer Security unless all appurtenant Coupons for interest then
matured have
been detached and canceled.
If all the Securities of a series are not to be
originally
issued at one time, and if the Board Resolution, Officers'
Certificate or
supplemental indenture establishing such series shall so permit,
such Company
Order may set forth procedures acceptable to the Trustee for the
issuance of
such Securities and the determination of the terms of particular
Securities of
such series such as interest rate or rates (or the method in
which such rate
or
rates are to be determined), if any, Stated Maturity, date of
issuance and
date
from which interest, if any, shall accrue.
If the forms or terms of the Securities of the series
and any
related Coupons have been established by or pursuant to one or
more Board
Resolutions as permitted by Sections 201 and 301, in
authenticating such
Securities, and accepting the additional responsibilities under
this Indenture
in relation to such Securities, the Trustee shall be entitled to
receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion
of
Counsel stating:
(a) if the forms of such Securities and any Coupons
have been
established by or pursuant to a Board Resolution as
permitted by
Section 201, that such forms have been established in
conformity with
the provisions of this Indenture; and
(b) if the terms of such Securities and any
Coupons have been
established by or pursuant to a Board Resolution as
permitted by
Section 301, that such terms have been established in
conformity with
the provisions of this Indenture.
Notwithstanding the provisions of Section 301 and
of the
preceding paragraph, if all Securities of a series are not to be
originally
issued at one time, it shall not be necessary to deliver the
Officers'
Certificate otherwise required pursuant to
<PAGE>
Section 301 or the Company Order and Opinion of Counsel otherwise
required
pursuant to such preceding paragraph at or prior to the time of
authentication
of each Security of such series if such documents are delivered
at or prior to
the authentication upon original issuance of the first Security
of such series
to be issued.
Each Registered Security shall be dated the date
of its
authentication; and each Bearer Security and any Bearer Security
in global
form
shall be dated as of the date of original issuance of the first
Security of
such
series to be issued.
No Security or Coupon shall be entitled to any benefit
under
this Indenture or be valid or obligatory for any purpose unless
there appears
on
such Security a certificate of authentication substantially in
the form
provided
for herein executed by the Trustee by manual signature, and such
certificate
upon any Security shall be conclusive evidence, and the only
evidence, that
such
Security has been duly authenticated and delivered hereunder.
Notwithstanding
the foregoing, if any Security shall have been duly authenticated
and
delivered
hereunder but never issued and sold by the Company, and the
Company shall
deliver such Security to the Trustee for cancellation as provided
in Section
309
together with a written statement (which need not comply with
Section 102 and
need not be accompanied by an Opinion of Counsel) stating that
such Security
has
never been issued and sold by the Company, for all purposes of
this Indenture
such Security shall be deemed never to have been authenticated
and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
If the Company shall establish pursuant to Section
301 that
the Securities of a series are to be issued in whole or in part
in the form of
a
Global Security, then the Company shall execute and the Trustee
shall in
accordance with this Section and the Company Order with respect
to such series
authenticate and deliver the Global Security that (i) shall
represent and
shall
be denominated in an aggregate amount equal to the aggregate
principal amount
of
Outstanding Securities of such series to be represented by the
Global
Security,
(ii) shall be registered, if in registered form, in the name of
the Depositary
for such Global Security 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 a legend substantially to the
following
effect:
"Unless and until this Security is exchanged in whole or in part
for
Securities
in definitive 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" or to such other effect as the Depositary and the
Trustee may
agree.
<PAGE>
Each Depositary designated pursuant to Section 301 for
a Global Security in registered 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. The Trustee shall have no responsibility to determine
if the
Depositary is so registered.
SECTION 304. Temporary Securities. Pending the
preparation of
definitive Securities of any series, the Company may execute, and
upon Company
Order the Trustee shall authenticate and deliver, temporary
Securities which
are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any
authorized denomination, substantially of the tenor of the
definitive
Securities
in lieu of which they are issued, (i) in registered form or (ii)
in bearer
form,
with one or more Coupons or without Coupons, and with such
appropriate
insertions, omissions, substitutions and other variations as the
officers
executing such Securities may determine, as evidenced
conclusively by their
execution of such Securities. Such temporary Securities may be
(in the case of
Registered Securities) and shall be (in the case of Bearer
Securities) in
global
form.
Except in the case of temporary Global Securities in
bearer
form (which are exchangeable for definitive Bearer Securities in
accordance
with
the provisions of the following paragraphs), if temporary
Securities of any
series are issued, the Company will cause definitive Securities
of that series
to be prepared without unreasonable delay. After the preparation
of definitive
Securities of such series, the temporary Securities of such
series shall be
exchangeable for definitive Securities of such series upon
surrender of the
temporary Securities of such series at the office or agency of
the Company
maintained pursuant to Section 1002 in a Place of Payment for
such series for
the purpose of exchanges of Securities of such series, without
charge to the
Holder. Upon surrender for cancellation of any one or more
temporary
Securities
of any series (accompanied by any unmatured Coupons appertaining
thereto) the
Company shall execute and the Trustee shall authenticate and
deliver in
exchange
therefor a like aggregate principal amount of definitive
Securities of the
same
series and of like tenor and authorized denominations; provided,
however, that
no definitive Bearer Security shall be delivered in exchange for
a temporary
Registered Security; and provided, further, that a definitive
Bearer Security
(including a definitive Bearer Security in global form) shall be
delivered in
exchange for a temporary Bearer Security only in compliance with
the
conditions
set forth in Section 303.
If temporary Global Securities in bearer form of any
series
are issued, any such temporary global Securities in bearer form
shall, unless
otherwise provided therein, be delivered to the London office of
a Depositary
(the "Common Depositary"), for the benefit of Euro-clear and
CEDEL, S.A., for
credit to the respective accounts of the beneficial owners of
such Securities
(or to such other accounts as they may direct).
<PAGE>
Without unnecessary delay but in any event not later
than the
date specified in, or determined pursuant to the terms of, any
such temporary
global Security in bearer form (the "Exchange Date"), the Company
shall
deliver
to the Trustee definitive Securities, in aggregate principal
amount equal to
the
principal amount of such temporary global Security in bearer
form, executed by
the Company. On or after the Exchange Date, such temporary global
Security in
bearer form shall be surrendered by the Common Depositary to the
Trustee, as
the
Company's agent for such purpose, to be exchanged, in whole or
from time to
time
in part, for definitive Securities without charge and the Trustee
shall
authenticate and deliver, in exchange for each portion of such
temporary
global
Security in bearer form, an equal aggregate principal amount of
definitive
Securities of the same series of authorized denominations and of
like tenor as
the portion of such temporary global Security in bearer form to
be exchanged.
The definitive Securities to be delivered in exchange for any
such temporary
global Security in bearer form shall be in bearer form,
registered form,
definitive global form (registered or bearer), or a combination
thereof, as
specified as contemplated by Section 301, and, if a combination
thereof is so
specified, as requested by the beneficial owner thereof;
provided, however,
that, unless otherwise specified in such temporary global
Security in bearer
form, upon such presentation by the Common Depositary, such
temporary global
Security in bearer form shall be accompanied by a certificate
dated the
Exchange
Date or a subsequent date and signed by Euro- clear as to the
portion of such
temporary global Security in bearer form held for its account
then to be
exchanged and a certificate dated the Exchange Date or a
subsequent date and
signed by CEDEL, S.A. as to the portion of such temporary global
Security in
bearer form held for its account then to be exchanged, each in
the form set
forth in Exhibit A.2 to this Indenture; and provided, further,
that definitive
Bearer Securities shall be delivered in exchange for a portion of
a temporary
global Security in bearer form only in compliance with the
requirements of
Section 303.
Unless otherwise specified in such temporary global
Security
in bearer form, the interest of a beneficial owner of Securities
of a series
in
a temporary global Security in bearer form shall be exchanged for
definitive
Securities of the same series and of like tenor following the
Exchange Date
when
the beneficial owner instructs Euro-clear or CEDEL, S.A., as the
case may be,
to
request such exchange on his behalf and delivers to Euro-clear or
CEDEL, S.A.,
as the case may be, a certificate in the form set forth in
Exhibit A.1 of this
Indenture, dated no earlier than 15 days prior to the Exchange
Date, copies of
which certificate shall be available from the offices of
Euro-clear, CEDEL,
S.A., the Trustee, any Authenticating Agent appointed for such
series of
Securities and any Paying Agent appointed for such series of
Securities.
Unless
otherwise specified in such temporary global Security in bearer
form, any such
exchange shall be made free of charge to the beneficial owners of
such
<PAGE>
temporary global Security in bearer form, except that a Person
receiving
definitive Securities must bear the cost of insurance,
postage,
transportation and the like in the event that such Person does
not take
delivery of such definitive Securities in person at the offices
of Euro-clear or CEDEL, S.A. The definitive Securities in
bearer form to be delivered in exchange for any portion of a
temporary global
Security in bearer form shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the
temporary
Securities of any series shall in all respects be entitled to the
same
benefits
under this Indenture as definitive Securities of the same series
and of like
tenor authenticated and delivered hereunder, except that, unless
otherwise
specified as contemplated by Section 301, interest payable on a
temporary
global
Security in bearer form on an Interest Payment Date for
Securities of such
series occurring prior to the applicable Exchange Date shall be
payable to
Euro-clear and CEDEL, S.A. on such Interest Payment Date upon
delivery by
Euro-clear and CEDEL S.A. to the Trustee of a certificate or
certificates in
the
form set forth in Exhibit A.2 to this Indenture, for credit
without further
interest on or after such Interest Payment Date to the respective
accounts of
the Persons who are the beneficial owners of such temporary
global Security in
bearer form (or to such other accounts as they may direct) on
such Interest
Payment Date and who have each delivered to Euro-clear or
CEDEL, S.A., as
the
case may be, a certificate in the form set forth in Exhibit A.1
to this
Indenture. Any interest so received by Euro-clear and CEDEL, S.A.
and not paid
as herein provided shall be returned to the Trustee immediately
prior to the
expiration of two years after such Interest Payment Date in order
to be repaid
to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of
Transfer and
Exchange. The Company shall cause to be kept at an office or
agency to be
maintained by the Company in accordance with Section 1002 a
register (being
the
combined register of the Security Registrar and all transfer
agents designated
pursuant to Section 1002 for the purpose of registration of
transfer of
Securities and sometimes collectively referred to as the
"Security Register")
in
which, subject to such reasonable regulations as it may
prescribe, the Company
shall provide for the registration of Registered Securities and
the
registration
of transfers of Registered Securities. The Trustee is hereby
appointed
"Security
Registrar" for the purpose of registering Registered Securities
and transfers
of
Registered Securities as herein provided.
Upon surrender for registration of transfer of any
Registered
Security of any series at the office or agency of the Company
maintained
pursuant to Section 1002 for such purpose in a Place of Payment
for such
series,
the Company shall execute, and the Trustee shall authenticate and
deliver, in
the name of the designated transferee or transferees, one or more
new
Registered
Securities of the same series of any authorized denominations and
<PAGE>
of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities
of any
series (except a Global Security representing all or a portion of
the
Securities
of such series) may be exchanged for other Registered Securities
of the same
series of any authorized denominations and of a like aggregate
principal
amount
and tenor, upon surrender of the Registered Securities to be
exchanged at any
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. Bearer Securities may not be issued in
exchange for
Registered Securities.
The Company may establish pursuant to Section 301 that,
at the
option of the Holder (subject to Section 303), Bearer Securities
of any series
may be exchanged for Registered Securities of the same series of
any
authorized
denominations and of a like aggregate principal amount and tenor,
upon
surrender
of the Bearer Securities to be exchanged at any such office or
agency, with
all
unmatured Coupons and all matured Coupons in default thereto
appertaining. If
the Holder of a Bearer Security is unable to produce any such
unmatured Coupon
or Coupons or matured Coupon or Coupons in default, such exchange
may be
effected if the Bearer Securities are accompanied by payment in
funds
acceptable
to the Company in an amount equal to the face amount of such
missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may
be waived by
the
Company and the Trustee if there is furnished to each of them
such security or
indemnity as each may require to save each of them and any Paying
Agent
harmless. If thereafter the Holder of such Security shall
surrender to any
Paying Agent any such missing Coupon in respect of which such a
payment shall
have been made, such Holder shall be entitled to receive the
amount of such
payment; provided, however, that, except as otherwise provided in
Section
1002,
interest represented by Coupons shall be payable only upon
presentation and
surrender of those Coupons at an office or agency located outside
the United
States. Notwithstanding the foregoing, in case a Bearer Security
of any series
is surrendered at any such office or agency in exchange for a
Registered
Security of the same series and like tenor after the close of
Business at such
office or agency on (i) any Regular Record Date and before the
opening of
business at such office or agency on the relevant Interest
Payment Date, or
(ii)
any Special Record Date and before the opening of business at
such office or
agency on the related proposed date for payment of Defaulted
Interest, such
Bearer Security shall be surrendered without the Coupon relating
to such
Interest Payment Date or proposed date for payment, as the case
may be, and
interest or Defaulted Interest, as the case may be, will not be
payable on
such
Interest Payment Date or proposed date for payment, as the case
may be, in
respect of the Registered Security issued in exchange for such
Bearer
Security,
but will be payable only to the Holder of such Coupon when due in
accordance
with the provisions of this Indenture.
<PAGE>
Whenever any Securities are so surrendered for
exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the
Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise
specified
as contemplated by Section 301, any definitive global Bearer
Security shall be
exchangeable only as provided in this paragraph. If the
beneficial owners of
interests in a definitive global Bearer Security are entitled to
exchange such
interests for Securities of such series and of like tenor and
principal amount
of another authorized form and denomination, as specified as
contemplated by
Section 301, then without unnecessary delay but in any event not
later than
the
earliest date on which such interests may be so exchanged, the
Company shall
deliver to the Trustee definitive Securities in aggregate
principal amount
equal
to the principal amount of such definitive global Bearer
Security, executed by
the Company. On or after the earliest date on which such
interests may be so
exchanged, such definitive global Bearer Security shall be
surrendered by the
Common Depositary or such other depositary or Common Depositary
as shall be
specified in the Company Order with respect thereto to the
Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to
time
in part, for definitive Securities without charge and the Trustee
shall
authenticate and deliver, in exchange for each portion of such
definitive
global
Bearer Security, an equal aggregate principal amount of
definitive Securities
of
the same series of authorized denominations and of like tenor as
the portion
of
such definitive global Bearer Security to be exchanged which,
unless the
Securities of the series are not issuable both as Bearer
Securities and as
Registered Securities, as specified as contemplated by Section
301, shall be
in
the form of Bearer Securities or Registered Securities or any
combination
thereof, as shall be specified by the beneficial owner thereof;
provided,
however, that no such exchanges may occur during a period
beginning at the
opening of business 15 days before any selection of Securities of
that series
to
be redeemed and ending on the relevant Redemption Date; and
provided, further,
that no Bearer Security delivered in exchange for a portion of a
definitive
global Security shall be mailed or otherwise delivered to any
location in the
United States. If a Registered Security is issued in exchange for
any portion
of
a definitive global Bearer Security after the close of business
at the office
or
agency where such exchange occurs on (i) any Regular Record Date
and before
the
opening of business at such office or agency on the relevant
Interest Payment
Date, or (ii) any Special Record Date and before the opening of
business at
such
office or agency on the related proposed date for payment of
Defaulted
Interest,
interest or Defaulted Interest, as the case may be, will not be
payable on
such
Interest Payment Date or proposed date for payment, as the case
may be, in
respect of such Registered Security, but will be payable on such
Interest
Payment Date or proposed date for payment, as the case may be,
only to the
Person to whom interest in respect of such portion of such
definitive
<PAGE>
global Bearer Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of
transfer or
exchange of Securities shall be the valid obligations of the
Company,
evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the
Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or
surrendered for
registration of transfer or for exchange shall (if so required by
the Company
or
the Trustee or any transfer agent) be duly endorsed, or be
accompanied by a
written instrument of transfer in form satisfactory to the
Company and the
Security Registrar or any transfer agent duly executed, by the
Holder thereof
or
his attorney duly authorized in writing.
No service charge shall be made for any
registration of
transfer or exchange of Securities, but the Company may require
payment of a
sum
sufficient to cover any tax or other governmental charge that may
be imposed
in
connection with any registration of transfer or exchange of
Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving
any
transfer.
The Company shall not be required (i) to issue, register
the
transfer of or exchange Securities of any series during a period
beginning at
the opening of business 15 days before any selection of
Securities of that
series to be redeemed and ending at the close of business on (A)
if Securities
of the series are issuable only as Registered Securities, the day
of the
mailing
of the relevant notice of redemption and (B) if Securities of the
series are
issuable as Bearer Securities, the day of the first publication
of the
relevant
notice of redemption or, if Securities of the series are also
issuable as
Registered Securities and there is no publication, the mailing of
the relevant
notice of redemption, or (ii) to register the transfer of or
exchange any
Registered Security so selected for redemption, in whole or in
part, except
the
unredeemed portion of any Security being redeemed in part, or
(iii) to
exchange
any Bearer Security so selected for redemption except that such a
Bearer
Security may be exchanged for a Registered Security of that
series and like
tenor; provided, that such Registered Security shall be
simultaneously
surrendered for redemption.
If at any time the Depositary for the Securities of a
series
notifies the Company that it is unwilling or unable to continue
as Depositary
for the Securities of such series or if at any time the
Depositary for the
Securities of such series shall no longer be eligible under
Section 303, the
Company shall appoint a successor Depositary with respect to the
Securities of
such series. If a successor Depositary for the Securities of such
series is
not
appointed by the Company within 90 days after the Company
receives such notice
or becomes aware of such ineligibility, the Company's election
pursuant to
Section 301 shall no longer be effective with respect to the
Securities
<PAGE>
of such series and the Company will execute, and the Trustee,
upon
receipt of a Company Order for the authentication and delivery
of definitive
Securities of such series, will authenticate and deliver,
Securities of such
series in definitive form in an aggregate principal amount
equal to the
principal amount of the Global Security representing such series
in exchange
for such Global Security.
If specified by the Company pursuant to Section
301 with
respect to a series of Securities, the Company may at any time
and in its sole
discretion determine that the Securities of any series issued in
the form of
one
or more Global Securities shall no longer be represented by such
Global
Security
or Securities. In such event the Company will execute, and the
Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive
Securities of such series, will authenticate and deliver
Securities of such
series in definitive form and in an aggregate principal amount
equal to the
principal amount of the Global Security or Securities
representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section
301 with
respect to a series of Securities, the Depositary for such series
of
Securities
may surrender a Global Security for such series of Securities in
exchange in
whole or in part for Securities of such series in definitive form
on such
terms
as are acceptable to the Company and such Depositary; provided,
however, that
no
portion of a Global Security in registered form may be
surrendered in exchange
for Securities in bearer form. Thereupon, the Company shall
execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery
of
definitive Securities of such series, shall authenticate and
deliver, without
charge to the Holders,
(i) to each Person specified by such Depositary
a new
Security or Securities of the series 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
Global
Security;
and
(ii) to such Depositary a new Global Security
in a
denomination equal to the difference, if any, between
the principal
amount of the surrendered Global Security and the
aggregate
principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding
three
paragraphs, the Company will execute and the Trustee will
authenticate and
deliver Securities (a) in definitive registered form in
authorized
denominations, if the Securities of such series are issuable as
Registered
Securities, (b) in definitive bearer form in authorized
denominations, with
coupons attached, if the Securities of such series are issuable
as Bearer
Securities or (c) as either Registered or Bearer Securities, if
<PAGE>
the Securities of such series are issuable in either form;
provided, however,
that a Bearer Security may not be delivered in exchange for a
Registered
Security, and provided, further, that a definitive Bearer
Security shall be
delivered in exchange for a temporary Global Security in bearer
form only in
compliance with the conditions set forth in Section 303 and
provided, further,
that delivery of a Bearer Security shall be made only outside the
United
States.
Upon the exchange of a Global Security for
Securities in
definitive form, such Global Security shall be canceled by the
Trustee.
Registered Securities issued in exchange for a Global Security
pursuant to
this
Section shall be registered in such names and in such authorized
denominations
as the Depositary for such Global Security, pursuant to
instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee in
writing. The Trustee shall deliver such Registered Securities to
the persons
in
whose names such Securities are so registered.
Notwithstanding any other provisions of this Section
to the
contrary, unless and until a Global Security is exchanged in
whole for
Securities in definitive form, a Global Security representing all
or a portion
of the Securities of a series may not be transferred except as a
whole by the
Depositary for such series to a nominee of such Depositary or by
a nominee of
such Depositary to such Depositary or another nominee of such
Depositary or by
such Depositary or any such nominee to a successor Depositary for
such series
or
a nominee of such successor Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or Security with a mutilated Coupon
appertaining to
it
is surrendered to the Trustee, the Company shall execute and the
Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same
series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding with Coupons corresponding to the
Coupons, if
any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and the
Trustee (i)
evidence to each of their satisfaction of the destruction, loss
or theft of
any
Security or Coupon and (ii) such security or indemnity as may be
required by
each of 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 (upon surrender to the Trustee
of such
Security
with all appurtenant Coupons not destroyed, lost or stolen), a
new Security of
the same series and of like tenor and principal amount and
bearing a number
not
contemporaneously outstanding, with Coupons corresponding to the
Coupons, if
<PAGE>
any, appertaining to such destroyed, lost or stolen Security or
to the
Security to which such destroyed, lost or stolen Coupon
appertains.
In case any such mutilated, destroyed, lost or stolen
Security
or Coupon has become or is about to become due and payable, the
Company in its
discretion may, instead of issuing a new Security or Coupon, pay
such Security
or Coupon; provided, however, that principal of (and premium, if
any) and any
interest on Bearer Securities shall, except as otherwise provided
in Section
1002, be payable only at an office or agency located outside the
United States
and, unless otherwise specified as contemplated by Section 301,
any interest
on
Bearer Securities shall be payable only upon presentation and
surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon
under this
Section, the Company may require the payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in relation
thereto and
any
other expenses (including the fees and expenses of the Trustee)
connected
therewith.
Every new Security or Coupon of any series issued
pursuant to
this Section in lieu of any mutilated, destroyed, lost or stolen
Security or
Coupon shall constitute an original additional contractual
obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen
Security
shall
be at any time enforceable by anyone, and shall be entitled to
all the
benefits
of this Indenture equally and proportionately with any and all
other
Securities
or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and
shall
preclude (to the extent lawful) all other rights and remedies
with respect to
the replacement or payment of mutilated, destroyed, lost or
stolen Securities
or
Coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise provided as contemplated by Section 301 with
respect to any
series of Securities, interest on any Registered Security which
is payable,
and
is punctually paid or duly provided for, on any Interest Payment
Date shall be
paid to the Person in whose name that Security (or one or more
Predecessor
Securities) is registered at the close of business on the Regular
Record Date
for such interest.
Any interest on any Registered Security of any series
which is
payable, but is not punctually paid or duly provided for, on any
Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be
payable to the Holder on the relevant Regular Record Date by
virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company, at
its
election in each case, as provided in Clause (1) or (2) below:
<PAGE>
(1) The Company may elect to make payment of any
Defaulted
Interest to the Persons in whose names the Registered
Securities of
such series (or their respective Predecessor Securities)
are
registered
at the close of business on a Special Record Date for
the payment of
such Defaulted Interest, which shall be fixed in the
following
manner.
The Company shall notify the Trustee in writing of the
amount of
Defaulted Interest proposed to be paid on each Security
of such
series
and the date of the proposed payment, and at the same
time the
Company
shall deposit with the Trustee an amount of money
equal to the
aggregate amount proposed to be paid in respect of such
Defaulted
Interest or shall make arrangements satisfactory to
the Trustee
for
such deposit prior to the date of the proposed payment,
such money
when
deposited to be held in trust for the benefit of the
Persons
entitled
to such Defaulted Interest as in this Clause provided.
Thereupon
the
Trustee shall fix a Special Record Date for the payment
of such
Defaulted Interest which shall be not more than 15 days
and not less
than 10 days prior to the date of the proposed payment
and not less
than 10 days after the receipt by the Trustee of the
notice of the
proposed payment. The Trustee shall promptly notify the
Company of
such
Special Record Date and, in the name and at the expense
of the
Company,
shall cause notice of the proposed payment of such
Defaulted
Interest
and the Special Record Date therefor to be mailed,
first-class
postage
prepaid, to each Holder of Securities of such series at
his address
as
it appears in the Security Register, not less than 10
days prior to
such Special Record Date. Notice of the proposed
payment of such
Defaulted Interest and the Special Record Date therefor
having been
so
mailed, such Defaulted Interest shall be paid to the
Persons in whose
names the Securities of such series (or their
respective
Predecessor
Securities) are registered at the close of business on
such Special
Record Date and shall no longer be payable pursuant to
the following
Clause (2).
(2) The Company may make payment of any Defaulted
Interest on
the Registered Securities of any series in any other
lawful manner
not
inconsistent with the requirements of any securities
exchange on
which
such Securities may be listed, and upon such notice as
may be
required
by such exchange, if, after notice given by the Company
to the
Trustee
of the proposed payment pursuant to this Clause, such
manner of
payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section and
Section 305, each Security delivered under this Indenture upon
registration of
transfer of or in exchange for or in lieu of any other Security
shall carry
the
rights to interest accrued and unpaid, and to accrue, which were
carried by
such
other Security, and, subject as aforesaid, each such Security
shall be so
dated,
or have attached thereto such Coupons, that neither gain nor loss
in interest
shall result from such transfer, exchange or substitution.
<PAGE>
SECTION 308. Persons Deemed Owners. Prior to due
presentment
of a Registered Security for registration of transfer, the
Company, the
Trustee
and any agent of the Company or the Trustee may treat the Person
in whose name
such Registered Security is registered as the owner of such
Registered
Security
for the purpose of receiving payment of principal of (and
premium, if any) and
(subject to Sections 305 and 307) any interest on such Security
and for all
other purposes whatsoever, whether or not such Security be
overdue, and
neither
the Company, the Trustee nor any agent of the Company or the
Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any Coupons
appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the
Company or the Trustee may treat the Holder of any Bearer
Security and the
Holder of any Coupon as the absolute owner of such Security or
Coupon for the
purpose of receiving payment thereof or on account thereof and
for all other
purposes whatsoever, whether or not such Security or Coupon be
overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee
shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any
Global
Security, nothing herein shall prevent the Company, the Trustee,
or any agent
of
the Company or the Trustee, from giving effect to any written
certification,
proxy or other authorization furnished by any Depositary, as a
Holder, with
respect to such Global Security or impair, as between such
Depositary and
owners
of beneficial interests in such Global Security, the operation of
customary
practices governing the exercise of the rights of such Depositary
(or its
nominee) as Holder of such Global Security. Neither the Company,
the Trustee,
nor any agent of the Company or the Trustee, will have any
responsibility or
liability for any aspects of the records relating to or payments
made on
account
of beneficial ownership interests in a Global Security or for
maintaining,
supervising or reviewing any records relating to such beneficial
ownership
interests.
SECTION 309. Cancellation. All Securities and
Coupons
surrendered for payment, redemption, registration of transfer or
exchange or
for
credit against any sinking fund payment shall, if surrendered to
any Person
other than the Trustee, be delivered to the Trustee. All such
Securities and
Coupons so delivered, and all such Securities and Coupons so
surrendered to
the
Trustee, shall be promptly canceled by the Trustee. All Bearer
Securities and
unmatured Coupons held by the Trustee pending such cancellation
shall be
deemed
to be delivered for cancellation for all purposes of this
Indenture and the
Securities. The Company may at any time deliver to the Trustee
for
cancellation
any Securities previously authenticated and delivered hereunder
which the
Company may have acquired in any manner whatsoever, and may
deliver to the
Trustee (or to any other Person for delivery to the Trustee) for
<PAGE>
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered
shall
be promptly canceled by the Trustee. No Securities shall be
authenticated in
lieu of or in exchange for any Securities canceled as provided in
this
Section,
except as expressly permitted by this Indenture. All canceled
Securities and
Coupons held by the Trustee shall be disposed of in a manner
selected by the
Trustee and the Trustee shall deliver a certificate evidencing
such
destruction
to the Company.
SECTION 310. Computation of Interest. Except as
otherwise
specified as contemplated by Section 301 for Securities of any
series,
interest
on the Securities of each series shall be computed on the basis
of a 360-day
year of twelve 30-day months.
SECTION 311. Manner of Payments in Respect of
Securities. The
provisions of this Section shall apply to the Securities of any
series unless
otherwise provided as contemplated by Section 301.
(a) The following payment provisions shall apply
to
any Registered Security of any series:
(1) Except as provided in subparagraph (a)(2)
below,
payment of principal of and premium, if
any, on such
Registered Security will be made at the Place of
Payment by
delivery of a check on the payment date or
dates against
surrender of such Registered Security, and any
interest on any
Registered Security will be paid at the Place of
Payment by
mailing a check by first class mail to the
Person entitled
thereto at the address of such Person
appearing on the
Security Register.
(2) Payment of the principal of, premium, if
any, and
interest, if any, on such Security may also,
subject to
applicable laws and regulations, be made at such
other place
or places as may be designated by the
Company by any
appropriate method.
(b) Payment of the principal of and premium,
if any, and
interest, if any, on any Bearer Security will be
made, except
as
provided in Section 304 with respect to temporary
global
Securities,
unless otherwise specified pursuant to Section 301
and/or Section
901(8), at such place or places outside the United
States as may be
designated by the Company pursuant to any
applicable laws or
regulations by any appropriate method on the payment
date
therefor
against surrender of the Bearer Security, in the case
of payment of
principal and premium, if any, or the relevant Coupon,
in the case of
payment of interest, if any, to a Paying Agent
designated for such
series pursuant to Section 1002.
(c) Not later than 10 Business Days (with respect
to
<PAGE>
any Place of Payment) prior to each payment date, the
Trustee shall
deliver to the Company a copy of its record of the
respective
aggregate
amounts of principal of, premium, if any, and interest,
if any, on
the
Securities to be made on such payment date, specifying
the amounts so
payable in respect of Registered Securities and Bearer
Securities.
SECTION 312. Compliance with Certain Laws and
Regulations. If
any Bearer Securities are to be issued in any series of
Securities, the
Company
will use reasonable efforts to provide for arrangements and
procedures
designed
pursuant to then applicable laws and regulations, if any, to
ensure that such
Bearer Securities are sold or resold, exchanged, transferred and
paid only in
compliance with such laws and regulations and without adverse
consequences to
the Company, the Holders and the Trustee.
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This
Indenture shall upon Company Request cease to be of further
effect (except as
to
any surviving rights of (as applicable) registration of transfer
or exchange
of
Securities and Coupons, if any, of any series herein expressly
provided for),
and the Trustee, at the expense of the Company, shall execute
proper
instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
(A) all Securities and Coupons theretofore
authenticated and delivered (other than (i)
Securities and
Coupons which have been destroyed, lost or
stolen and which
have been replaced or paid as provided in
Section 306 and
(ii)
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
1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and Coupons not
theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Company,
<PAGE>
and the Company, in the case of (B)(i), (ii) or
(iii) above,
has deposited or caused to be deposited with the
Trustee as
trust funds in trust for the purpose an amount
sufficient to
pay and discharge the entire indebtedness on
such Securities
and Coupons not theretofore delivered to the
Trustee for
cancellation, for principal (and premium,
if any) and
interest, if any, to the date of such deposit (in
the case of
Securities and Coupons which have become due and
payable) or
to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers'
Certificate and an Opinion of Counsel, each stating that
all
conditions
precedent herein provided for relating to the
satisfaction
and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of
this
Indenture, the obligations of the Company to the Trustee under
Section 607,
the
obligations of the Company to any Authenticating Agent under
Section 614 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 402
and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 1003, all money
deposited with the
Trustee pursuant to Sections 401 and 403 shall be held in trust
and applied by
it, in accordance with the provisions of the Securities and
Coupons, if any,
and
this Indenture, to the payment, either directly or through any
Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if
any) and any interest for whose payment such money has been
deposited with the
Trustee; but such money need not be segregated from other funds
except to the
extent required by law.
SECTION 403. Satisfaction, Discharge and
Defeasances of
Securities of Any Series. If this Section is specified, as
contemplated by
Section 301, to be applicable to Securities and Coupons, if any,
of any
series,
the Company will be deemed to have been Discharged (as defined
below) from its
obligations with respect to Securities and Coupons, if any, of
such series
when
(1) either
(A) with respect to all Outstanding Securities and
<PAGE>
Coupons of such series, the Company has deposited
or caused to
be deposited with the Trustee as a trust fund
specifically
pledged as security for, and dedicated solely
to, the benefit
of the Holders of the Securities and Coupons, if
any, of such
series, (i) money in an amount as will,
or (ii) U.S.
Government Obligations (as defined below) as
will, together
with the predetermined and certain income to
accrue thereon
without consideration of any reinvestment
thereof, or (iii) a
combination of (i) and (ii) as will (in a written
opinion with
respect to (ii) or (iii) of independent public
accountants
delivered to the Trustee), be sufficient to pay
and discharge
the entire indebtedness on all Outstanding
Securities and
Coupons of such series for principal (and
premium, if any) and
interest, if any, to the Stated Maturity or
any Redemption
Date as contemplated by the last paragraph of
this Section
403, as the case may be; or
(B) with respect to all Outstanding Securities and
Coupons of such series, the Company has
properly fulfilled
such other means of satisfaction and discharge as
is specified
by Section 301 to be applicable to the Securities
and Coupons,
if any, of such series; and
(2) the Company has paid or caused to be paid all
other sums payable with respect to the Outstanding
Securities and Coupons, if any, of such series;
(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 the entire indebtedness on all Outstanding
Securities
and
Coupons, if any, of any such series have been complied
with; and
(4) with respect to subsection 1(A) above, the
Company shall
have delivered to the Trustee an Opinion of Counsel to
the effect
that
Holders of the Securities and Coupons, if any, of such
series will
not
recognize income, gain or loss for Federal income tax
purposes as a
result of the Company's exercise of its option under
this Section
403
and will be subject to Federal income tax in the same
amount, in the
same manner and at the same times as would have been the
case if such
option had not been exercised.
Any deposits with the Trustee referred to in Section
403(1)(A)
above shall be irrevocable and shall be made under the terms of
an escrow
trust
agreement in form and substance satisfactory to the Trustee. If
any
Outstanding
Securities and Coupons, if any, of such series are to be redeemed
prior to
their
Stated Maturity, whether pursuant to any mandatory redemption
provisions or in
accordance with any mandatory sinking fund requirement, the
applicable escrow
trust agreement will provide therefor and the Company will
make
arrangements for the giving of notice of redemption by the
Trustee
in the name, and at the expense, of the Company.
<PAGE>
SECTION 404. Reinstatement. If the Trustee is unable to
apply
any money or U.S. Government Obligations in accordance with
Section 401 or 403
by reason of any legal proceeding or by reason of any order or
judgment of any
court or governmental authority enjoining, restraining or
otherwise
prohibiting
such application, the Company's obligations under this Indenture
and the
Securities and Coupons, if any, of such series shall be revived
and reinstated
as though no deposit had occurred pursuant to Section 401 or 403
until such
time
as the Trustee is permitted to apply all such money or U.S.
Governmental
Obligations in accordance with Section 401 or 403; provided,
however, that if
the Company has made any payment of interest on or principal of
(and premium,
if
any, on) any Securities and Coupons, if any, of such series
because of the
reinstatement of its obligations, the Company shall be subrogated
to the
rights
of the Holders of such series of Securities and Coupons, if any,
to receive
such
payment from the money or U.S. Government Obligations held by the
Trustee.
SECTION 405. Definitions. The following terms, as
used in this Article IV, shall have the following meanings:
"Discharged" means that the Company will be
deemed to have
paid and discharged the entire indebtedness
represented by, and
obligations under, the Securities and Coupons, if any, of
the series
as
to which Section 403 is specified as applicable as
aforesaid and
to
have satisfied all the obligations under this Indenture
relating to
the
Securities and Coupons, if any, of such series (and the
Trustee, at
the
expense of the Company, will execute proper instruments
acknowledging
the same), except (A) the rights of Holders thereof to
receive,
from
the trust fund described in Section 403(1)(A) above,
payment of
the
principal of (and premium, if any) and the interest,
if any, on
such
Securities and Coupons, if any, when such payments
are due, (B)
the
Company's obligations with respect to such Securities
and Coupons,
if
any, under Sections 305 and 306 (insofar as applicable to
Securities
of
such series), 402, 1002 and 1003 (last paragraph
only) and
the
Company's obligations to the Trustee under Sections 607
and 610 and
(C)
the rights, powers, trusts, duties and immunities of
the Trustee
hereunder, will survive such discharge.
"U.S. Government Obligations" means securities
that are (i)
direct obligations of the United States of America for
the payment
of
which its full faith and credit is pledged or (ii)
obligations of
a
Person controlled or supervised by and acting as
an agency
or
instrumentality of the United States of America the
timely payment
of
which is unconditionally guaranteed as a full
faith and
credit
obligation of the United States of America, which, in
either case
under
clauses (i) or (ii), are not callable or redeemable at
the option
of
the issuer thereof, and will also include a depository
receipt
issued
by a bank or trust company as custodian with respect to
any such
U.S.
Government Obligation or a specified payment of
interest on
or
principal of any such U.S. Government Obligation held by
such
custodian
for the account of the holder of a depository receipt,
provided
that
(except as required by law) such custodian is not
authorized to
make
any deduction from the amount payable to the holder of
such
depository
receipt from any amount received by the custodian in
respect of
the
U.S. Government Obligation or the specific payment of
interest on
or
principal of the U.S. Government Obligation
evidenced by
such
depository receipt.
ARTICLE V
Remedies
SECTION 501. Events of Default. "Event of Default",
wherever
used herein with respect to Securities of any series, means any
one of the
following events, unless it is either inapplicable to a
particular series or
it
is specifically deleted or modified in or pursuant to the
supplemental
indenture
or Board Resolution establishing such series of Securities or in
the form of
Security for such series:
(a) the failure of the Company to pay any
installment of
interest on any of the Securities of that series, when
and as the
same
shall become payable, which failure shall have continued
unremedied
for
a period of 30 days;
(b) the failure of the Company to pay the
principal of (and
premium, if any, on) any of the Securities of that
series, when and
as
the same shall become payable, whether at Stated
Maturity as therein
expressed, by call for redemption, pursuant to any
sinking fund, by
declaration as authorized by this Indenture or
otherwise;
(c) the failure of the Company to observe and
perform any
other of the covenants or agreements on the part of
the Company
contained in this Indenture (other then a covenant or
agreement
included in this Indenture solely for the benefit
of a series
of
Securities other than that series), which failure shall
have
continued
unremedied for a period of 90 days after written notice
shall have
been
given, by registered or certified mail, to the Company
by the
Trustee,
or shall have been given to the Company and the Trustee
by the
Holders
of 25% or more in principal amount of the Securities
of that
series
then Outstanding, specifying such failure and requiring
the Company
to
remedy the same and stating that such notice is a
"Notice of
Default"
hereunder;
<PAGE>
(d) the entry of a decree or order for relief
by a court
having jurisdiction in the premises in respect of the
Company in an
involuntary case under the Federal bankruptcy laws, as
now or
hereafter
constituted, or any other applicable Federal or State
bankruptcy,
insolvency or other similar law, or appointing a
receiver,
liquidator,
assignee, custodian, trustee, sequestrator (or other
similar
official)
of the Company or for any substantial part of its
property, or
ordering the winding up or liquidation of its affairs
and the
continuance of any such decree or order unstayed and
in effect
for a period of 90 consecutive days;
(e) the commencement by the Company of a voluntary
case under
the Federal bankruptcy laws, as now constituted or
hereafter
amended,
or any other applicable Federal or State bankruptcy,
insolvency or
other similar law, or the consent by it to the
appointment of or
taking
possession by a receiver, liquidator, assignee,
trustee,
custodian,
sequestrator (or other similar official) of the
Company or for any
substantial part of its property, or the making by it of
any
assignment
for the benefit of its creditors, or the admission by
the Company in
writing of its inability to pay its debts generally
as such
debts
become due;
(f) an event of default, as defined in any mortgage,
indenture
(including this Indenture), trust agreement or
other instrument
securing, evidencing or providing for any Debt of the
Company as a
result of which Debt of the Company in excess of
$25,000,000
aggregate
principal amount shall be or become due and payable
prior to the
date
on which the same would otherwise become due and
payable (except
that
such amount shall be $20,000,000 in respect of a
default on
Securities
of another series) and such acceleration shall not
have been
annulled
or rescinded within 30 days of notice of such
acceleration to
the
Company; provided, however, that, if such event of
default with
respect
to such other series of Securities or under such
indenture
or
instrument, as the case may be, shall be remedied
or cured by
the
Company or waived by the holders of such other series of
Securities
or
the holders of such indebtedness, as the case may be,
pursuant to
this
Indenture or such indenture or instrument, as the
case may be,
then
unless the Maturity of the Securities of such series
shall have
been
accelerated as provided herein, the Event of Default
hereunder
by
reason thereof shall be deemed likewise to have
been
thereupon
remedied, cured or waived without further action
upon the part
of
either the Trustee or the holders of such series; or
(g) any other Event of Default provided with
respect
to the Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than
<PAGE>
25% in principal amount of the Outstanding Securities of that
series may
declare
the principal amount (or, if the Securities of that series are
Original Issue
Discount Securities, such portion of the principal amount as may
be specified
in
the terms of that series) of all of the Securities of that series
to be due
and
payable immediately, by a notice in writing to the Company (and
to the Trustee
if given by Holders), and upon any such declaration such
principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration
with
respect to Securities of any series has been made and before a
judgment or
decree for payment of the money due has been obtained by the
Trustee as
hereinafter in this Article provided, the Holders of a majority
in principal
amount of the Outstanding Securities of that series, by written
notice to the
Company and the Trustee, may rescind and annul such declaration
and its
consequences if
(1) the Company has paid or deposited with the
Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities
of
that series,
(B) the principal of (and premium, if
any, on) any
Securities of that series which have become due
otherwise
than
by such declaration of acceleration and
interest thereon
at
the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such
interest is
lawful, interest upon overdue interest at the
rate or rates
prescribed therefor in such Securities or, in
the case of
Original Issue Discount Securities, the
Securities' Yield to
Maturity, and
(D) all sums paid or advanced by the
Trustee
hereunder and the reasonable compensation,
expenses,
disbursements and advances of the Trustee, its
agents and
counsel;
and
(2) all Events of Default with respect to
Securities of that
series, other than the nonpayment of the principal of
Securities
of
that series which have become due solely by such
declaration of
acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair
any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if the
<PAGE>
Company shall fail for a period of 30 days to pay any installment
of interest
on
the Securities of any series or shall fail to pay the principal
of (and
premium,
if any, on) any of the Securities of any series when and as the
same shall
become due and payable, whether at Stated Maturity, or by call
for redemption,
pursuant to any sinking fund, by declaration as authorized by
this Indenture,
or
otherwise, the Company will, upon demand of the Trustee, pay to
it, for the
benefit of the Holders of such Securities and Coupons, if any,
the whole
amount
then due and payable on such Securities and Coupons, if any, for
principal
(and
premium, if any) and interest and, to the extent that payment of
such interest
shall be legally enforceable, interest on any overdue principal
(and premium,
if
any) and on any overdue interest, at the rate or rates prescribed
therefor in
such Securities (or, in the case of Original Issue Discount
Securities, the
Securities' Yield to Maturity) and 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 an Event of Default with respect to Securities and
Coupons,
if any, of any series occurs and is continuing, the Trustee may
in its
discretion proceed to protect and enforce its rights and the
rights of the
Holders of Securities of such series by such appropriate judicial
proceedings
as
the Trustee shall deem most effectual to protect and enforce any
such rights,
whether for the specific enforcement of any covenant or agreement
in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In
case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to
authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition
affecting the Securities or the rights of any Holder thereof
or to
authorize the Trustee to vote in respect of the claim of any
Holder in
any such proceeding.
<PAGE>
SECTION 505. Trustee May Enforce Claims Without
Possession of
Securities. All rights of action and claims under this Indenture
or the
Securities and Coupons, if any, may be prosecuted and enforced by
the Trustee
without the possession of any of the Securities or the production
thereof in
any
proceeding relating thereto, and any such proceeding instituted
by the Trustee
shall be brought in its own name as trustee of an express trust,
and any
recovery of judgment shall, after provision for the payment of
the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities and
Coupons, if any, in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any
money
collected by the Trustee pursuant to this Article shall be
applied in the
following order, at the date or dates fixed by the Trustee and,
in case of the
distribution of such money on account of principal (or premium,
if any) or
interest, if any, upon presentation of the Securities and the
notation thereon
of the payment if only partially paid and upon surrender thereof
if fully
paid:
FIRST: to the payment of all amounts due the
Trustee
under Section 607;
SECOND: to the payment of the amounts then due and
unpaid for
principal of (and premium, if any) and interest, if
any, on the
Securities in respect of which or for the benefit of
which such
money
has been collected, ratably, without preference or
priority of any
kind, according to the amounts due and payable on such
Securities for
principal (and premium, if any) and interest, if any,
respectively;
and
THIRD: the balance, if any, ratably to the Person
or
Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any
Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver of trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to
Securities of such
series shall have occurred and be continuing and such
Holder has
previously given written notice to the Trustee of such
continuing
Event of Default;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series
shall
<PAGE>
have made written request to the Trustee to institute
proceedings in
respect of such Event of Default in its own name as
Trustee
hereunder;
(3) such Holder or Holders have offered to the
Trustee
reasonable indemnity against the costs, expenses and
liabilities to
be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice,
request and offer of indemnity has failed to institute
any such
proceeding; and
(5) no direction inconsistent with such written
request has
been given to the Trustee during such 60-day period by
the Holders of
a majority in principal amount of the Outstanding
Securities
of that series;
it being understood and intended that no one or more of such
Holders shall
have
the right in any manner whatever by virtue of, or by availing of,
any
provision
of this Indenture (including without limitation the provisions of
Section 512)
to affect, disturb or prejudice the rights of any other of such
Holders, or to
obtain or to seek to obtain priority or preference over any other
of such
Holders or to enforce any right under this Indenture, except in
the manner
herein provided and for the equal and ratable benefit of all of
such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other
provision in this
Indenture, the Holder of any Security or any Coupon shall have
the right,
which
is absolute and unconditional, to receive payment of the
principal of (and
premium, if any, on) and (subject to Section 307) any interest on
such
Security
or Coupon on the Stated Maturity or Maturities expressed in such
Security (or,
in the case of redemption, on the Redemption Date) and to
institute suit for
the
enforcement of any such payment, and such rights shall not be
impaired without
the consent of such Holder.
SECTION 509. 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 510. Rights and Remedies Cumulative. Except
as provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred
<PAGE>
upon or reserved to the Trustee or to the Holders is intended to
be exclusive
of
any other right or remedy, and every right and remedy shall, to
the extent
permitted by law, be cumulative and in addition to every other
right and
remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise,
shall not prevent the concurrent assertion or employment of any
other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No
delay or
omission of the Trustee or of any Holder of any Securities to
exercise any
right
or remedy accruing upon any Event of Default shall impair any
such right or
remedy or constitute a waiver of any such Event of Default or any
acquiescence
therein. Every right and remedy given by this Article or by law
to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be
deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders. The Holders of not less
than
a majority in principal amount of the Outstanding Securities of
any series
shall
have the right to direct the time, method and place of conducting
any
proceeding
for any remedy available to the Trustee, or exercising any trust
or power
conferred on the Trustee, with respect to the Securities of such
series,
provided that
(1) such direction shall not be in conflict with
any
rule of law or with this Indenture,
(2) the Trustee shall not determine that the
action so
directed would be unjustly prejudicial to the Holders
not taking
part
in such direction, and
(3) the Trustee may take any other action deemed
proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults. The Holders of
not less
than a majority in principal amount of the Outstanding Securities
of any
series
may on behalf of the Holders of all the Securities of such series
waive any
past
default hereunder with respect to such series and its
consequences, except a
default
(1) in the payment of the principal of (or premium,
if
any) or interest, if any, on any Security of such
series, or
(2) in respect of a covenant or provision hereof
which under
Article IX cannot be modified or amended without the
consent of the
Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to
exist with
respect to such series, and any Event of Default with respect to
such series
arising therefrom shall be deemed to have
<PAGE>
been cured, for every purpose of this Indenture; but no such
waiver shall
extend to any subsequent or other default or impair any right
consequent
thereon.
SECTION 514. Undertaking for Costs. In any suit
for the
enforcement of any right or remedy under this Indenture, or in
any suit
against
the Trustee for any action taken, suffered or omitted by it as
Trustee, a
court
may require any party litigant in such suit to file an
undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in
the
manner and to the extent provided in the Trust Indenture Act;
provided that
neither this Section nor the Trust Indenture Act shall be deemed
to authorize
any court to require such an undertaking or to make such an
assessment in any
suit instituted by the Company.
ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties
and
only such duties as are specifically set forth in this
Indenture,
and no implied covenants or obligations shall be read
into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part,
the
Trustee may conclusively rely, as to the truth of the
statements and
the correctness of the opinions expressed therein, upon
certificates
or opinions furnished to the Trustee and conforming to
the
requirements of this Indenture; but in the case of any
such
certificates or opinions which by any provision of this
Indenture
are specifically required to be furnished to the
Trustee,
the Trustee shall be under a duty to examine the
same
to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred
and is
continuing, the Trustee shall exercise such of the rights and
powers vested in
it by this Indenture, and use the same degree of care and skill
in their
exercise, as a prudent man would exercise or use under the
circumstances in
the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own
negligent failure to act, or its own willful misconduct, except
that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
<PAGE>
(2) the Trustee shall not be liable for any error
of
judgment made in good faith by a Responsible Officer,
unless it shall
be proved that the Trustee was negligent in ascertaining
the
pertinent
facts;
(3) the Trustee shall not be liable with respect
to
any action taken or omitted to be taken by it in good
faith in
accordance with the direction of the Holders of a
majority in
principal amount of the Outstanding Securities of any
series,
determined as provided in Sections 101, 104 and 512,
relating to
the time, method and place of conducting any proceeding
for any
remedy available to the Trustee, or exercising any trust
or power
conferred upon the Trustee, under this Indenture with
respect
to the Securities of such series; and
(4) no provision of this Indenture shall require
the
Trustee to expend or risk its own funds or otherwise
incur any
financial liability in the performance of any of its
duties
hereunder,
or in the exercise of any of its rights or powers, if
it shall have
reasonable grounds for believing that repayment of
such funds or
adequate indemnity against such risk or liability is
not reasonably
assured to it.
(d) Whether or not therein expressly so provided,
every
provision of this Indenture relating to the conduct or affecting
the liability
of or affording protection to the Trustee shall be subject to the
provisions
of
this Section.
SECTION 602. Notice of Defaults. If a default occurs
hereunder
with respect to Securities of any series, the Trustee shall give
the Holders
of
Securities of such series notice of such default actually known
to the Trustee
as and to the extent provided by the Trust Indenture Act;
provided, however,
that in the case of any default of the character specified in
Section 501(c)
with respect to Securities of such series, no such notice to
Holders shall be
given until at least 30 days after the occurrence thereof and if
such default
is
corrected within such period, the Trustee may conclude,
consistent with the
Trust Indenture Act, that notice of such a default need not be
provided to
such
Holders of Securities. For the purpose of this Section, the term
"default"
means
any event which is, or after notice or lapse of time or both
would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee. Subject to
the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or
refraining from acting upon any resolution, certificate,
statement,
instrument, opinion, report, notice, request, direction,
consent,
order, bond, debenture, note, other evidence of
indebtedness or other
paper or document believed by it to be genuine and to
have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein
shall be sufficiently evidenced by a Company Request or
Company
Order
and any resolution of the Board of Directors may be
sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the
Trustee shall deem it desirable that a matter be proved
or
established
prior to taking, suffering or omitting any action
hereunder,
the
Trustee (unless other evidence be herein specifically
prescribed)
may,
in the absence of negligence or bad faith on its part,
rely upon
an
Officers' Certificate;
(d) the Trustee may consult with counsel and
the written
advice of such counsel or any Opinion of Counsel
shall be full
and
complete authorization and protection in respect of any
action
taken,
suffered or omitted by it hereunder in good faith
and in
reliance
thereon;
(e) the Trustee shall be under no obligation to
exercise any
of the rights or powers vested in it by this Indenture
at the
request
or direction of any of the Holders pursuant to this
Indenture,
unless
such Holders shall have offered to the Trustee
reasonable security
or
indemnity against the costs, expenses and liabilities
which might
be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation
into the facts or matters stated in any resolution,
certificate,
statement, instrument, opinion, report, notice,
request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness
or other paper or document, but the Trustee, in its
discretion, may
make such further inquiry or investigation into such
facts or
matters
as it may, in good faith, deem reasonable in the
circumstances, and,
if
the Trustee shall determine to make such further
inquiry or
investigation, any further evidence which may be
requested by the
Trustee pursuant to the provisions of this paragraph
shall be
furnished by the Company; and
(g) the Trustee may execute any of the trusts
or powers
hereunder or perform any duties hereunder either
directly or by or
through agents or attorneys and the Trustee shall not be
responsible
for any misconduct or negligence on the part of any
agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance
of Securities. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication,
<PAGE>
shall be taken as the statements of the Company, and the Trustee
assumes no
responsibility for their correctness. The Trustee makes no
representations as
to
the validity or sufficiency of this Indenture or of the
Securities. Neither
the
Trustee nor any Authenticating Agent shall be accountable for the
use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any
Paying
Agent, any Security Registrar or any other agent of the Company,
in its
individual or any other capacity, may become the owner or pledgee
of
Securities
or warrants to purchase Securities and, subject to Sections 608
and 613, may
otherwise deal with the Company with the same rights it would
have if it were
not Trustee, Paying Agent, Security Registrar or such other
agent.
SECTION 606. Money Held in Trust. Money held by the
Trustee or
any Paying Agent in trust hereunder need not be segregated from
other funds
except to the extent required by law. The Trustee or any Paying
Agent shall be
under no liability for interest on any money received by it
hereunder except
as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement. The
Company agrees
(1) to pay to the Trustee from time to time
reasonable
compensation for all services rendered by it
hereunder (which
compensation shall not be limited by any provision of
law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided
herein, to
reimburse the Trustee upon its request for all
reasonable expenses,
disbursements and advances incurred or made by the
Trustee in
accordance with any provision of this Indenture
(including the
reasonable compensation and the expenses and
disbursements of
its
agents and counsel), except any such expense,
disbursement or advance
as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold
it harmless
against, any loss, damage, claim, liability or expense
incurred
without
negligence or bad faith on its part, arising out of or
in
connection
with the acceptance or administration of the trust or
trusts
hereunder,
including the costs and expenses of defending itself
against any
claim
or liability in connection with the exercise or
performance of any
of
its powers or duties hereunder.
As security for the performance of the obligations
of the
Company under this Section, the Trustee shall have a lien prior
to the
Securities upon all property and funds held or collected by the
Trustee as
such,
except funds held in trust for the payment of principal of,
premium, if any,
or
interest, if any, on particular Securities.
<PAGE>
SECTION 608. Disqualification; Conflicting Interests.
If the
Trustee has or shall acquire any conflicting interest within the
meaning of
the
Trust Indenture Act, the Trustee shall comply with the relevant
provisions
thereof.
SECTION 609. Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee hereunder which shall be a Person
that is
eligible pursuant to the Trust Indenture Act to act as such and
has a combined
capital and surplus of at least $50,000,000. If such Person
publishes reports
of
condition at least annually, pursuant to law or to the
requirements of its
supervising or examining authority, then for the purposes of this
Section, the
combined capital and surplus of such Person shall be deemed to be
its combined
capital and surplus as set forth in its most recent report of
condition so
published. If at any time the Trustee shall cease to be eligible
in accordance
with the provisions of this Section, it shall resign immediately
in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor
Trustee in accordance with the applicable requirements of Section
611.
(b) The Trustee may resign at any time with respect
to the
Securities of one or more series by giving written notice
thereof
to the Company. If the instrument of acceptance by a successor
Trustee
required by Section 611 shall not have been delivered to the
resigning
Trustee within 30 days after the giving of such notice of
resignation,
the resigning Trustee may petition any court of competent
jurisdiction
for the appointment of a successor Trustee with respect to the
Securities
of such series.
(c) The Trustee may be removed at any time with respect
to the
Securities of any series by Act of the Holders of a majority in
principal
amount
of the Outstanding Securities of such series, delivered to the
Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608
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 for a series shall cease to
be
eligible under Section 609 and shall fail to resign
after written
request therefor by the Company or by any Holder of
Securities of
such
series, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver
<PAGE>
of the Trustee or of its property shall be appointed
or any public
officer shall take charge or control of the Trustee or
its property
or
affairs for the purpose of rehabilitation, conservation
or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the
Trustee with respect to all Securities, or (ii) subject to
Section 514, any
Holder who has been a bona fide Holder of a Security for at least
six months
may, on behalf of himself and all others similarly situated,
petition any
court
of competent jurisdiction for the removal of the Trustee with
respect to all
Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or
become
incapable of acting, or if a vacancy shall occur in the office of
the Trustee
for any cause, with respect to the Securities of one or more
series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or
Trustees with respect to the Securities of that or those series
(it being
understood that any such successor Trustee may be appointed with
respect to
the
Securities of one or more or all of such series and that at any
time there
shall
be only one Trustee with respect to the Securities of any
particular series)
and
each successor Trustee or Trustees shall comply with the
applicable
requirements
of Section 611. 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 611, 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 611,
any
Holder who has been a bona fide Holder of a Security of such
series for at
least
six months may, on behalf of himself and all others similarly
situated,
petition
any court of competent jurisdiction for the appointment of a
successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each
removal of the Trustee with respect to the Securities of any
series and each
appointment of a successor Trustee with respect to the Securities
of any
series
by giving notice of such event to all Holders of Securities of
such series as
provided by Section 106. Each notice shall include the name of
the successor
Trustee with respect to the Securities of such series and the
address of its
Corporate Trust Office.
<PAGE>
SECTION 611. Acceptance of Appointment by Successor.
(a) In
case of the appointment hereunder of a successor Trustee with
respect to all
Securities, every such successor Trustee so appointed shall
execute,
acknowledge
and deliver to the Company and to the retiring Trustee an
instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring
Trustee shall become effective and such successor Trustee,
without any further
act, deed or conveyance, shall become vested with all the rights,
powers,
trusts
and duties of the retiring Trustee; but, on the request of the
Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges,
execute and deliver an instrument transferring to such successor
Trustee all
the
rights, powers and trusts of the retiring Trustee and shall duly
assign,
transfer and deliver to such successor Trustee all property and
money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor
Trustee with respect to the Securities of one or more (but not
all) series,
the
Company, the retiring Trustee and each successor Trustee with
respect to the
Securities of one or more series shall execute and deliver an
indenture
supplemental hereto wherein each successor Trustee shall accept
such
appointment
and which (1) shall contain such provisions as shall be necessary
or desirable
to transfer and confirm to, and to vest in, each successor
Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the
Securities of that or those series to which the appointment of
such successor
Trustee relates, (2) if the retiring Trustee is not retiring with
respect to
all
Securities, shall contain such provisions as shall be deemed
necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the
retiring Trustee with respect to the Securities of that or those
series as to
which the retiring Trustee is not retiring shall continue to be
vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration
of the trusts hereunder by more than one Trustee, it being
understood that
nothing herein or in such supplemental indenture shall constitute
such
Trustees
co-trustees of the same trust and that 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.
<PAGE>
(c) Upon request of any such successor Trustee, the
Company
shall execute any and all instruments for more fully and
certainly vesting in
and confirming to such successor Trustee all such rights, powers
and trusts
referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment
unless
at the time of such acceptance such successor Trustee shall be
qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or
Succession
to Business. Any corporation into which the Trustee may be merged
or converted
or with which it may be consolidated, or any corporation
resulting from any
merger, conversion or consolidation into which the Trustee shall
be a party,
or
any corporation succeeding to all or substantially all the
corporate business
of
the Trustee, shall be the successor of the Trustee hereunder,
provided such
corporation shall be otherwise qualified and eligible under this
Article,
without the execution or filing of any paper or any further act
on the part of
any of the parties hereto. In case any Securities shall have been
authenticated,
but not delivered, by the Trustee then in office, any successor
by merger,
conversion or consolidation to such authenticating Trustee may
adopt such
authentication and deliver the Securities so authenticated with
the same
effect
as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of
the Company
(or any other obligor upon the Securities or the Coupons, if
any), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the
collection of claims against the Company (or any such other
obligor).
SECTION 614. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
having a combined capital and surplus of not less than the
equivalent of $50,000,000 and subject to supervision or
examination by Federal or State authority or the equivalent
foreign authority, in the case of an Authenticating Agent who is
<PAGE>
not organized and doing business under the laws of the United
States of
America,
any State thereof or the District of Columbia. If such
Authenticating Agent
publishes reports of condition at least annually, pursuant to law
or to the
requirements of said supervising or examining authority, then for
the purposes
of this Section, the combined capital and surplus of such
Authenticating Agent
shall be deemed to be its combined capital and surplus as set
forth in its
most
recent report of condition so published. If at any time an
Authenticating
Agent
shall cease to be eligible in accordance with the provisions of
this Section,
such Authenticating Agent shall resign immediately in the manner
and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may
be
merged or converted or with which it may be consolidated, or any
corporation
resulting from any merger, conversion or consolidation to which
such
Authenticating Agent shall be a party, or any corporation
succeeding to the
corporate agency or corporate trust business of such
Authenticating Agent,
shall
continue to be an Authenticating Agent; provided such corporation
shall be
otherwise eligible under this Section, without the execution or
filing of any
paper or any further act on the part of the Trustee or such
Authenticating
Agent.
An Authenticating Agent may resign at any time by
giving
written notice thereof to the Trustee and to the Company. The
Trustee may at
any
time terminate the agency of an Authenticating Agent by giving
written notice
thereof to such Authenticating Agent and to the Company. Upon
receiving such a
notice of resignation or upon such a termination, or in case at
any time such
Authenticating Agent shall cease to be eligible in accordance
with the
provisions of this Section, the Trustee may appoint a successor
Authenticating
Agent which shall be acceptable to the Company and shall mail
written notice
of
such appointment by first-class mail, postage prepaid, to all
Holders of
Registered Securities, if any, of the series with respect to
which such
Authenticating Agent will serve, as their names and addresses
appear in the
Security Register. Any successor Authenticating Agent upon
acceptance of its
appointment hereunder shall become vested with all the rights,
powers and
duties
of its predecessor hereunder, with like effect as if originally
named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from
time to time reasonable compensation 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 the Trustee's certificate of
authentication, an
alternative certificate of authentication in the following form:
<PAGE>
This is one of the Securities of the series designated
and
issued under the within-mentioned Indenture.
[full name of Trustee]
As Trustee
By
As Authenticating Agent
By
Authorized [Officer]
[Signatory]
If all of the Securities of a series may not be
originally
issued at one time, and if the Trustee does not have an office
capable of
authenticating Securities upon original issuance located in a
Place of Payment
or other place where the Company wishes to have Securities of
such series
authenticated upon original issuance, the Trustee, if so
requested by the
Company in writing (which writing need not comply with Section
102 and need
not
be accompanied by an Opinion of Counsel), shall appoint in
accordance with
this
Section an Authenticating Agent (which may be an Affiliate of the
Company if
eligible to be appointed as an Authenticating Agent hereunder)
having an
office
in such Place of Payment or other place designated by the Company
with respect
to such series of Securities.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company To Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than January 15 and
July 15 in
each year (commencing with the first January 15 or July
15 after the
first issuance of Securities pursuant to this
Indenture), a list, in
such form as the Trustee may reasonably require, of all
information
in
the possession or control of the Company or any Paying
Agent as to
the
names and addresses of the Holders of each series of
Registered
Securities as of the preceding January 1 or July 1, as
the case may
be,
(b) at such other times as the Trustee may request in
writing,
within 30 days after the receipt by the Company of any
such request,
a
list of similar form and content as of a
<PAGE>
date not more than 15 days prior to the time such list
is
furnished, and
(c) such information concerning the Holders of
Bearer
Securities which is known to the Company; provided,
however,that the
Company shall have no obligation to investigate any
matter relating
to
any Holder of a Bearer Security or a Coupon.
SECTION 702. Preservation of Information;
Communications to
Holders. (a) The Trustee shall preserve, in as current a form as
is reasonably
practicable, the names and addresses of Holders contained in the
most recent
list furnished to the Trustee as provided in Section 701 and the
names and
addresses of Holders received by the Trustee in its capacity as
Security
Registrar. The Trustee may destroy any list furnished to it as
provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with
other
Holders with respect to their rights under this Indenture or
under the
Securities, and the corresponding rights and privileges of the
Trustee, shall
be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by
receiving and
holding the same, agrees with the Company and the Trustee that
neither the
Company nor the Trustee nor any agent of either of them shall be
held
accountable by reason of the disclosure of any such information
as to the
names
and addresses of the Holders in accordance with Section 312 of
the Trust
Indenture Act, regardless of the source from which such
information was
derived,
and that the Trustee shall not be held accountable by reason of
mailing any
material pursuant to a request made under Section 312(b) of the
Trust
Indenture
Act.
SECTION 703. Reports by Trustee. (a) On or before July
15 of
each year commencing with the first July 15 after the first
issuance of
Securities pursuant to this Indenture, the Trustee shall transmit
to the
Holders
of Securities, in the manner and to the extent provided in
Section 313(c) of
the
Trust Indenture Act, a brief report if required by Section 313(a)
of the Trust
Indenture Act, dated as of a date no more than 60 nor less than
45 days prior
thereto. The Trustee also shall comply with Section 313(b) of the
Trust
Indenture Act and shall transmit to Holders, in the manner and to
the extent
provided is said Section 313(c), such other reports, if any, as
may be
required
pursuant to the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon
which any Securities are listed, with the Commission and with the
Company. The
Company will notify the Trustee when any Securities are listed on
any stock
exchange.
<PAGE>
SECTION 704. Reports by Company. The Company shall
file with
the Trustee and the Commission, and transmit to Holders, such
information,
documents and reports, and such summaries thereof, as may be
required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to
such Act; provided that any such information, documents or
reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of
the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15
days after the
same is so required to be filed with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on
Certain
Terms. The Company shall not consolidate with or merge into any
other
corporation or convey, transfer or lease its properties and
assets
substantially
as an entirety to any Person, and the Company shall not permit
any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or
merge into
another corporation or convey, transfer or lease its
properties
and
assets substantially as an entirety to any Person,
the
corporation
formed by such consolidation or into which the Company
is merged or
the
Person which acquires by conveyance or transfer, or
which leases,
the
properties and assets of the Company substantially as an
entirety
shall
be a corporation organized and existing under the laws
of the United
States of America, any State thereof or the District of
Columbia and
shall expressly assume, by an indenture supplemental
hereto,
executed
and delivered to the Trustee, in form reasonably
satisfactory to
the
Trustee, the due and punctual payment of the principal
of (and
premium,
if any) and interest, if any, on all the Outstanding
Securities of
all
series and the performance of every covenant of this
Indenture on
the
part of the Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no
Event of Default, and no event which, after notice or
lapse of time
or
both, would become an Event of Default, shall have
happened and be
continuing; and
(3) if a supplemental indenture is required in
connection with
such transaction, the Company shall have delivered to
the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that
such
consolidation, merger, conveyance, transfer or lease and
such
supplemental indenture comply with this Article and that
all
conditions
precedent herein provided for relating to such
transaction
<PAGE>
have been complied with.
SECTION 802. Successor Corporation Substituted. Upon
any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation
had been named as the Company herein, and thereafter, the
predecessor corporation shall be relieved of the performance and
observance of all obligations and covenants under this Indenture
and the Securities (and any Coupons appertaining thereto),
including but not limited to the obligation to make payment of
the principal of (and premium, if any) and interest, if any, on
all the Outstanding Securities of all series (and any Coupons
appertaining thereto), and, in the event of such conveyance,
transfer or lease, may be liquidated and dissolved.
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of
Holders. Without the consent of any Holders, the Company, when
authorized by
or
pursuant to a Board Resolution, and the Trustee, at any time and
from time to
time, may enter into one or more indentures supplemental hereto,
in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another
corporation
to the Company and the assumption by any such successor
of
the covenants of the Company herein and in the
Securities;
(2) to add to the covenants of the Company for the
benefit of
the Holders of all or any series of Securities (and if
such covenants
are to be for the benefit of less than all series of
Securities,
stating that such covenants are expressly being included
solely for
the
benefit of such series) or to surrender any right or
power herein
conferred upon the Company;
(3) to add any additional Events of Default
with respect to
all or any series of the Securities (and, if such Event
of Default is
applicable to less than all series of Securities
specifying the
series
to which such Event of Default is applicable);
(4) to add to or change any of the provisions of
this
Indenture to such extent as shall be necessary to
facilitate
<PAGE>
the issuance of Securities in bearer form, registrable
or not
registrable as to principal, and with or without
interest coupons; to
change or eliminate any restrictions on the payment of
principal of
or
any premium or interest on Bearer Securities, to permit
Bearer
Securities to be issued in exchange for Registered
Securities, to
permit Bearer Securities to be issued in exchange for
Bearer
Securities
of other authorized denominations; provided that any
such addition or
change shall not adversely affect the interests of the
Holders of
Securities of any series or any related Coupons in any
material
respect;
(5) to change or eliminate any of the
provisions of this
Indenture; provided that any such change or elimination
shall become
effective only when there is no Security Outstanding
of any series
created prior to the execution of such supplemental
indenture which
is
adversely affected by such change in or elimination of
such
provision;
(6) to establish the form or terms of Securities
of
any series as permitted by Sections 201 and 301;
(7) to evidence and provide for the acceptance of
appointment
hereunder by a successor Trustee with respect to the
Securities of
one
or more series and to add to or change any of the
provisions of this
Indenture as shall be necessary to provide for or
facilitate the
administration of the trusts hereunder by more than
one Trustee,
pursuant to the requirements of Section 611(b);
(8) if allowed under applicable laws and
regulations, to
permit payment in the United States of principal,
premium or
interest
on Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated
Securities of one or more series in addition to or in
place
of certificated Securities; or
(10) to cure any ambiguity, to correct or
supplement any
provision herein which may be defective or inconsistent
with any
other
provision herein, or to make any other provisions
with respect
to
matters or questions arising under this Indenture;
provided such
other
provisions as may be made shall not adversely affect
the interests
of
the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal
amount
of the Outstanding Securities of all series affected by such
supplemental
indenture (acting as one class), by Act of said Holders delivered
to the
Company
and the Trustee, the Company, when authorized by or pursuant to a
Board
Resolution, and the Trustee may enter into an indenture or
indentures
supplemental hereto for the purpose of adding any provisions to
or changing in
any manner or eliminating any of the
<PAGE>
provisions of this Indenture or of modifying in any manner the
rights of the
Holders of Securities of such series under this Indenture;
provided, however,
that no such supplemental indenture shall, without the consent of
the Holder
of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal
of, or any
instalment of principal of or interest on, any Security,
or reduce
the
principal amount thereof or the rate of interest thereon
or any
premium
payable upon the redemption thereof, or reduce the
amount of
the
principal of an Original Issue Discount Security that
would be due
and
payable upon a declaration of acceleration of the
Maturity
thereof
pursuant to Section 502, or change any Place of Payment
where, or
the
coin or currency in which, any Security 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, with
respect to
Outstanding Securities of a series, to maintain an
office or agency
in
the places and for the purposes specified in Section
1002 for
such
series, or
(4) modify any of the provisions of this Section
or Section
513 except to increase any such percentage or to
provide with
respect
to any particular series the right to condition the
effectiveness
of
any supplemental indenture as to that series on the
consent of
the
Holders of a specified percentage of the aggregate
principal amount
of
Outstanding Securities of such series (which
provision may be
made
pursuant to Section 301 without the consent of any
Holder) or
to
provide that certain other provisions of this
Indenture cannot
be
modified or waived without the consent of the
Holder of
each
Outstanding Security affected thereby; provided,
however, that
this
clause shall not be deemed to require the consent of
any Holder
with
respect to changes in the references to "the Trustee"
and
concomitant
changes in this Section, or the deletion of this
proviso, in
accordance
with the requirements of Sections 611(b) and 901(7).
For purposes of this Section 902, if the
Securities of any
series are issuable upon the exercise of warrants, each holder of
an
unexercised
and unexpired warrant with respect to such series shall be deemed
to be a
Holder
of Outstanding Securities of such series in the amount issuable
upon
<PAGE>
the exercise of such warrant. For such purposes, the ownership of
any such warrant shall be determined by the Company in a manner
consistent
with customary commercial practices. The Trustee for such series
shall
be entitled to rely on an Officers' Certificate as to the
principal
amount of Securities of such series in respect
of which consents shall have been executed by holders of such
warrants.
A supplemental indenture which changes or
eliminates any
covenant or other provision of this Indenture which has expressly
been
included
solely for the benefit of one or more particular series of
Securities, or
which
modifies the rights of the Holders of Securities of such series
with respect
to
such covenant or other provision, shall be deemed not to affect
the rights
under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under
this
Section to approve the particular form of any proposed
supplemental indenture,
but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive (in addition to the
opinion which the Trustee is entitled to receive pursuant to
Section 303), and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or
liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the
execution of any supplemental indenture under this Article, this
Indenture
shall
be modified in accordance therewith, and such supplemental
indenture shall
form
a part of this Indenture for all purposes; and every Holder
of
Securities
theretofore or thereafter authenticated and delivered hereunder
shall be
bound
thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
<PAGE>
shall so determine, new Securities of any series so modified as
to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture
may be prepared and executed by the Company and authenticated and
delivered by
the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest. The
Company covenants and agrees for the benefit of each series of
Securities and
Coupons, if any, that it will duly and punctually pay the
principal of (and
premium, if any, on) each of the Securities and Coupons, if any,
of that
series,
and the interest, if any, which shall have accrued thereon, in
accordance with
the terms of the Securities and Coupons, if any, of such series
and this
Indenture.
SECTION 1002. Maintenance of Office or Agency. If
Securities of a series are issuable only as Registered
Securities, until all the Securities of each such series shall
have been paid or payment thereof provided for, the Company will
maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be
surrendered for registration of transfer 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, until
all the Securities of each such series shall have been paid or
payment thereof provided for, the Company will maintain (A) in
The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or
surrendered for payment in the circumstances described in this
paragraph (and not otherwise), (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or
agency where Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant
to Section 1004); 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
<PAGE>
Securities of that series in London, Luxembourg or any other
required city
located outside the United States, as the case may be, so long as
the
Securities
of that series are listed on such exchange, and (C) subject to
any laws or
regulations applicable thereto, in a Place of Payment for that
series located
in
Europe, an office or agency where any Registered Securities of
that series may
be surrendered for registration of transfer, where Securities of
that series
may
be surrendered for 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 and
the Holders of
the location, and any change in the location, of any such office
or agency. If
at any time the Company shall fail to maintain any such required
office or
agency in respect of any series of Securities or shall fail to
furnish the
Trustee with the address thereof, such presentations and
surrenders of
Securities of that series may be made and notices and demands may
be made or
served at the Corporate Trust Office of the Trustee, except that
Bearer
Securities of that series and the related Coupons may be
presented and
surrendered for payment (including payment of any additional
amounts payable
on
Bearer Securities of that series pursuant to Section 1004) at the
London
office
of the Trustee (or an agent with a London office appointed by the
Trustee and
acceptable to the Company), and the Company hereby appoints the
same as its
agent to receive such respective presentations, surrenders,
notices and
demands.
Presentation of Coupons for payment or other demands for payment
of Bearer
Securities must be made outside the United States, and no payment
of
principal,
premium or interest on Bearer Securities shall be made at any
office or agency
of the Company in the United States or by check mailed to any
address in the
United States or by transfer to an account maintained with a bank
located in
the
United States; provided, however, that payment of principal of
and any premium
and interest on any Bearer Security (including any additional
amounts payable
on
Securities of such series pursuant to Section 1004) shall be made
at the
office
of the Company's Paying Agent in The City of New York, if (but
only if) (i)
despite the appointment of Paying Agents outside the United
States, payment of
the full amount of such principal, premium, interest or
additional amounts, as
the case may be, at the offices of all such Paying Agents
maintained for the
purpose by the Company in accordance with this Indenture is
illegal or
effectively precluded by exchange controls or other similar
restrictions, (ii)
such payment is then permitted by applicable laws and (iii) in
appointing a
Paying Agent in The City of New York, the Company would not
suffer any fiscal
or
other sanction under applicable laws as a result of such
appointment or of any
payment being made through such Paying Agent.
The Company may also from time to time designate one or
more
other offices or agencies where the Securities of one or more
series may be
presented or surrendered for any or all such purposes and may
from time to
time
rescind such designations; provided, however, that no such
designation or
rescission shall in any manner relieve the Company of its
obligation to
maintain
<PAGE>
an office or agency in accordance with the requirements set forth
above for
Securities of any series for such purposes. The Company will give
prompt
written
notice to the Trustee and the Holders of any such designation or
rescission
and
of any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held
in
Trust. If the Company shall at any time act as its own Paying
Agent with
respect
to any series of Securities, it will, on or before each due date
of the
principal of (and premium, if any) or interest, if any, on any of
the
Securities
of that series, segregate and hold in trust for the benefit of
the Persons
entitled thereto a sum sufficient to pay the principal (and
premium, if any)
or
interest, if any, so becoming due until such sums shall be paid
to such
Persons
or otherwise disposed of as herein provided and will promptly
notify the
Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for
any series of Securities, it will, at or prior to the opening of
business on
each due date of the principal of (and premium, if any) or
interest, if any,
on
any Securities of that series, deposit with a Paying Agent a sum
sufficient to
pay the principal (and premium, if any) or interest, if any, so
becoming due,
such sum to be held as provided by the Trust Indenture Act, and
(unless such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee of
its
action or failure so to act.
The Company will cause each Paying Agent for any
series of
Securities other than the Trustee to execute and deliver to the
Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to
the provisions of this Section, that such Paying Agent will (i)
comply with
the
provisions of the Trust Indenture Act applicable to it as a
Paying Agent and
(ii) during the continuance of any default by the Company (or any
other
obligor
upon the Securities of that series) in the making of any payment
in respect of
the Securities of that series, and upon the written request of
the Trustee,
forthwith pay to the Trustee all sums held in trust by such
Paying Agent for
payment in respect of the Securities of that series.
Anything in this Section 1003 to the contrary
notwithstanding,
the Company may at any time, for the purpose of obtaining the
satisfaction and
discharge of this Indenture or for any other purpose, pay, or by
Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the
same
trusts as those upon which such sums were held by the Company or
such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying
Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying
Agent, or
then held by the Company, in trust for the payment of the
principal of (and
premium, if any) or interest, if any, on
<PAGE>
any Security of any series and remaining unclaimed for two years
after such
principal (and premium, if any) or interest has become due and
payable shall
be
paid to the Company, or (if then held by the Company) shall be
discharged from
such trust; and the Holder of such Security and Coupons, 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,
shall at the
expense and at the written direction 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,
notice that
such money remains unclaimed and that, after a date specified
herein, which
shall not be less than 30 days from the date of such publication,
any
unclaimed
balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Additional Amounts. If the Securities
of a
series provide for the payment of additional amounts, the Company
will pay to
the Holder of any Security of such series or any Coupon
appertaining thereto
additional amounts as provided and subject to the conditions set
forth
therein.
Whenever in this Indenture there is mentioned, in any context,
the payment of
the principal of or any premium or interest on, or in respect of,
any Security
of any series or payment of any related Coupon or the net
proceeds received on
the sale or exchange of any Security of any series, such mention
shall be
deemed
to include mention of the payment of additional amounts provided
for in this
Section to the extent that, in such context, additional amounts
are, were or
would be payable in respect thereof pursuant to the provisions of
this Section
and express mention of the payment of additional amounts (if
applicable) in
any
provisions hereof shall not be construed as excluding additional
amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest
Payment Date
with respect to that series of Securities (or if the Securities
of that series
will not bear interest prior to Maturity, the first day on which
a payment of
principal and any premium is made), and at least 10 days prior to
each date of
payment of principal and any premium or interest if there has
been any change
with respect to the matters set forth in the below-mentioned
Officers'
Certificate, the Company will furnish the Trustee and the
Company's Paying
Agent
or Paying Agents, if other than the Trustee, with an Officers'
Certificate
instructing the Trustee and such Paying Agent or Paying Agents
whether such
payment of principal of and any premium or interest on the
Securities of that
series shall be made to Holders of Securities of that series or
any related
Coupons who are United States Aliens (as defined in the
Securities) without
withholding for or on account of any tax, assessment or other
governmental
charge described in the Securities of that series. If any such
<PAGE>
withholding shall be required, then such Officers' Certificate
shall specify
by
country the amount, if any, required to be withheld on such
payments to such
Holders of Securities or Coupons and the Company will pay to the
Trustee or
such
Paying Agent the additional amounts required by this Section. The
Company
covenants to indemnify the Trustee and any Paying Agent for, and
to hold them
harmless against, any loss, liability or expense reasonably
incurred without
negligence or bad faith on their part arising out of or in
connection with
actions taken or omitted by any of them in reliance on an
Officers'
Certificate
furnished pursuant to this Section.
SECTION 1005. Statement as to Compliance. On or before
March
31 of each year following the date hereof, the Company shall
deliver to the
Trustee a certificate of the principal executive officer,
principal financial
officer or principal accounting officer of the Company, stating
whether or not
to the best knowledge of such officer the Company is in default
in the
performance and observance of any of the terms, provisions and
conditions of
this Indenture (without regard to any period of grace or
requirement of notice
provided hereunder) and, if the Company shall be in default,
specifying all
such
defaults and the nature and status thereof of which such officer
may have
knowledge.
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article. Securities
(including
any Coupons) of any series which are redeemable before their
Stated Maturity
shall be redeemable in accordance with their terms and (except as
otherwise
specified as contemplated by Section 301 for Securities
(including any
Coupons)
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to
Trustee. The
election of the Company to redeem any Securities (including any
Coupons) shall
be evidenced by a Board Resolution or by an action taken pursuant
to a Board
Resolution. In case of any redemption at the election of the
Company of less
than all the Securities (including any Coupons) of any series,
the Company
shall, at least 60 days prior to the Redemption Date fixed by the
Company
(unless a shorter notice shall be satisfactory to the Trustee),
notify the
Trustee of such Redemption Date and of the principal amount of
Securities
(including any Coupons) of such series to be redeemed. In the
case of any
redemption of Securities (including any Coupons) prior to the
expiration of
any
restriction on such redemption provided in the terms of such
Securities
(including any Coupons) or elsewhere in this Indenture, the
Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with
such restriction.
<PAGE>
SECTION 1103. Selection by Trustee of Securities
to be
Redeemed. If less than all the Securities (including any Coupons)
of any
series
are to be redeemed, the particular Securities (including any
Coupons) to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date
by
the Trustee, from the Outstanding Securities (including any
Coupons) of such
series not previously called for redemption, by such method as
the Trustee
shall
deem fair and appropriate and which may provide for the selection
for
redemption
of portions (equal to the minimum authorized denomination for
Securities
(including any Coupons) of that series or any integral multiple
thereof) of
the
principal amount of Securities (including any Coupons) of such
series of a
denomination larger than the minimum authorized denomination for
Securities
(including any Coupons) of that series.
In any case where Securities (including any Coupons)
of such
series are registered in the same name, the Trustee in its
discretion may
treat
the aggregate principal amount so registered as if it were
represented by one
Security of such series. If the Securities of any series
(including any
Coupons)
to be redeemed consist of Securities having different Stated
Maturities or
different rates of interest (or methods of computing interest),
then the
Company
may, in the written notice delivered to the Trustee pursuant to
Section 1102,
direct that the Securities (including any Coupons) of such series
to be
redeemed
shall be selected from among groups of such Securities having
specified Stated
Maturities or rates of interest (or methods of computing
interest) and the
Trustee shall thereafter select the particular Securities
(including any
Coupons) to be redeemed in the manner set forth above from among
the groups of
such Securities so specified.
The Trustee shall promptly notify the Company in writing
of
the Securities (including any Coupons) selected for redemption
and, in the
case
of any Securities (including any Coupons) selected for partial
redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities
(including any Coupons) shall relate, in the case of any
Securities (including
any Coupons) redeemed or to be redeemed only in part, to the
portion of the
principal amount of such Securities (including any Coupons) which
has been or
is
to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption
shall
be given not less than 30 nor more than 60 days prior to the
Redemption Date,
to
each Holder of Securities to be redeemed, as provided in Section
106.
Each such notice of redemption shall specify the
Redemption
Date, the Redemption Price, the Place or Places of Payment, that
the
Securities
of such series are being redeemed at
<PAGE>
the option of the Company pursuant to provisions contained in the
terms of the
Securities of such series or in a supplemental indenture
establishing such
series, if such be the case, together with a brief statement of
the facts
permitting such redemption, that on the Redemption Date the
Redemption Price
will become due and payable upon each Security redeemed, that
payment will be
made upon presentation and surrender of the applicable
Securities, that all
Coupons, if any, maturing subsequent to the date fixed for
redemption shall be
void, that any interest accrued to the Redemption Date will be
paid as
specified
in said notice, and that on and after said Redemption Date any
interest
thereon
or on the portions thereof to be redeemed will cease to accrue.
If less than
all
the Securities of any series are to be redeemed the notice of
redemption shall
specify the numbers of the Securities of such series to be
redeemed, and, if
only Bearer Securities of any series are to be redeemed, and if
such Bearer
Securities may be exchanged for Registered Securities, the last
date on which
exchanges of Bearer Securities for Registered Securities not
subject to
redemption may be made. In case any Security of any series is to
be redeemed
in
part only, the notice of redemption shall state the portion of
the principal
amount thereof to be redeemed and shall state that on and after
the Redemption
Date, upon surrender of such Security and any Coupons
appertaining thereto, a
new Security or Securities of such series in principal amount
equal to the
unredeemed portion thereof and with appropriate Coupons will be
issued, or, in
the case of Registered Securities providing appropriate space for
such
notation,
at the option of the Holders, the Trustee, in lieu of delivering
a new
Security
or Securities as aforesaid, may make a notation on such Security
of the
payment
of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any,
to be
redeemed at the election of the Company shall be given by the
Company or, at
the
Company's request, by the Trustee in the name and at the expense
of the
Company.
SECTION 1105. Deposit of Redemption Price. On or before
the
opening of business on any Redemption Date, the Company shall
deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as
its own paying
Agent, segregate and hold in trust as provided in Section 1003)
an amount of
money sufficient to pay the Redemption Price of, and (except if
the Redemption
Date shall be an Interest Payment Date) accrued interest on, all
the
Securities
and Coupons, if any, which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of
redemption having been given as aforesaid, the Securities so to
be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price
therein specified, and from and after such date (unless the
Company shall
default in the payment of the Redemption Price and accrued
interest, if any)
such Securities shall cease to bear interest and the Coupons for
such interest
appertaining to any Bearer Securities so to be
<PAGE>
redeemed, except to the extent provided below, shall be void.
Upon surrender
of
any such Security for redemption in accordance with said notice,
together with
all Coupons, if any, appertaining thereto maturing after the
Redemption Date,
such Security shall be paid by the Company at the Redemption
Price, together
with accrued interest, if any, to the Redemption Date; provided,
however, that
installments of interest on Bearer Securities whose Stated
Maturity is on or
prior to the Redemption Date shall be payable only at an office
or agency
located outside the United States (except as otherwise provided
in Section
1002)
and, unless otherwise specified as contemplated by Section 301,
only upon
presentation and surrender of Coupons for such interest, and
provided,
further,
that, unless otherwise specified as contemplated by Section 301,
installments
of
interest on Registered Securities whose Stated Maturity is on or
prior to the
Redemption Date shall be payable to the Holders of such
Securities, or one or
more Predecessor Securities, registered as such at the close of
business on
the
relevant Record Dates according to their terms and the provisions
of Section
307.
If any Bearer Security surrendered for redemption shall
not be
accompanied by all appurtenant Coupons maturing after the
Redemption Date,
such
Security may be paid after deducting from the Redemption Price an
amount equal
to the face amount of all such missing Coupons, or the surrender
of such
missing
Coupon or Coupons may be waived by the Company and the Trustee if
there be
furnished to them such security or indemnity as they may require
to save each
of
them and any Paying Agent harmless. If thereafter the Holder of
such Security
shall surrender to the Trustee or any Paying Agent any such
missing Coupon in
respect of which a deduction shall have been made from the
Redemption Price,
such Holder shall be entitled to receive the amount so deducted;
provided,
however, that interest represented by Coupons shall be payable
only at an
office
or agency located outside the United States (except as otherwise
provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301,
only upon presentation and surrender of those Coupons.
If any Security called for redemption shall not be
so paid
upon surrender thereof for redemption, the principal and any
premium
shall,
until paid, bear interest from the Redemption Date at the
rate
prescribed
therefor in the Security (or, in the case of any Original
Issue
Discount
Securities, the Security's Yield to Maturity).
SECTION 1107. Security Redeemed in Part. Any
Security
(including any Coupons appertaining thereto) which is to be
redeemed only in
part shall be surrendered at a Place of Payment therefor (with,
if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by,
the Holder thereof or his attorney duly authorized in writing),
and the
Company
shall execute, and the Trustee shall authenticate and deliver to
the Holder of
such Security (including any Coupons appertaining thereto)
without service
charge, a new Security
<PAGE>
(including any Coupons appertaining thereto) or Securities
(including any
Coupons appertaining thereto) of the same series and Stated
Maturity and like
tenor, of any authorized denomination as requested by such
Holder, in
aggregate
principal amount equal to and in exchange for the unredeemed
portion of the
principal of the Security (including any Coupons appertaining
thereto) so
surrendered.
ARTICLE XII
Sinking Funds
SECTION 1201. Applicability of Article. The provisions
of this
Article shall be applicable to any sinking fund for the
retirement of
Securities
(including any Coupons) of a series except as otherwise specified
as
contemplated by Section 301 for Securities (including any
Coupons) of such
series.
The minimum amount of any sinking fund payment provided
for by
the terms of Securities (including any Coupons) 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 (including
any Coupons)
of any series is herein referred to as an "optional sinking fund
payment". If
provided for by the terms of Securities (including any Coupons)
of any series,
the cash amount of any sinking fund payment may be subject to
reduction as
provided in Section 1202. Each sinking fund payment shall be
applied to the
redemption of Securities (including any Coupons) of any series as
provided for
by the terms of Securities (including any Coupons) of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Securities. The Company (1) may deliver Outstanding Securities
(including any
Coupons) of a series (other than any previously called for
redemption) and (2)
may apply as a credit Securities (including any Coupons) of a
series which
have
been redeemed (or called for redemption and for which the
Redemption Price,
together with accrued interest, if any, has been deposited
pursuant to Section
1105), either at the election of the Company pursuant to the
terms of such
Securities (including any Coupons) or through the application of
permitted
optional sinking fund payments pursuant to the terms of such
Securities
(including any Coupons), in each case in satisfaction of all or
any part of
any
sinking fund payment with respect to the Securities (including
any Coupons) of
such series required to be made pursuant to the terms of such
Securities
(including any Coupons) as provided for by the terms of such
series; provided
that such Securities (including any Coupons) have not been
previously so
credited. Such Securities (including any Coupons) shall be
received and
credited
for such purpose by the Trustee at the Redemption Price specified
in such
Securities (including any Coupons) for redemption through
operation of the
sinking fund and the amount of such sinking fund payment shall be
reduced
accordingly.
<PAGE>
SECTION 1203. Redemption of Securities for Sinking
Fund. Not
less than 60 days prior to each sinking fund payment date for any
series of
Securities (including any Coupons), 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
(including any Coupons) of that series pursuant to Section 1202
and the
optional
amount, if any, to be added in cash to the next ensuing mandatory
sinking fund
payment, and will also deliver to the Trustee any Securities
(including any
Coupons) to be so delivered. If such Officers' Certificate shall
specify an
optional amount to be added in cash to the next ensuing mandatory
sinking fund
payment, the Company shall thereupon be obligated to pay the
amount therein
specified. Not less than 30 days before each such sinking fund
payment date
the
Trustee shall select the Securities (including any Coupons) to be
redeemed
upon
such sinking fund payment date in the manner specified in Section
1103 and
cause
notice of the redemption thereof to be given in the name of and
at the expense
of the Company in the manner provided in Section 1104. Such
notice having been
duly given, the redemption of such Securities (including any
Coupons) shall be
made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE XIII
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be
Called. If
Securities of a series are issuable as Bearer Securities, a
meeting of Holders
of Securities of such series may be called at any time and from
time to time
pursuant to this Article to make, give or take any request,
demand,
authorization, direction, notice, consent, waiver or other action
provided by
this Indenture to be made, given or taken by Holders of
Securities of such
series.
SECTION 1302. Call, Notice and Place of Meetings. (a)
The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section
1301, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London, as the Trustee
shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
<PAGE>
(b) In case at any time the Company, by or pursuant to a
Board
Resolution, or the Holders of at least 10% in principal amount of
the
Outstanding Securities of any series shall have requested the
Trustee to call
a
meeting of the Holders of Securities of such series for any
purpose specified
in
Section 1301, by written request setting forth in reasonable
detail the action
proposed to be taken at the meeting, and the Trustee shall not
have made the
first publication of the notice of such meeting within 21 days
after receipt
of
such request or shall not thereafter proceed to cause the meeting
to be held
as
provided herein, then the Company or the Holders of Securities of
such series
in
the amount above specified, as the case may be, may determine the
time and the
place in the Borough of Manhattan, The City of New York, or in
London, for
such
meeting and may call such meeting for such purposes by giving
notice thereof
as
provided in subsection (a) of this Section.
SECTION 1303. Persons Entitled To Vote at Meetings.
To be
entitled to vote at any meeting of Holders of Securities of any
series, a
Person
shall be (1) a Holder of one or more Outstanding Securities of
such series, or
(2) a Person appointed by an instrument in writing as proxy for a
Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or
Holders. The only Persons who shall be entitled to be present or
to speak at
any
meeting of Holders of Securities of any series shall be the
Persons entitled
to
vote at such meeting and their counsel, any representatives of
the Trustee and
its counsel and any representatives of the Company and its
counsel.
SECTION 1304. Quorum; Action. The Persons entitled to
vote a
majority in principal amount of the Outstanding Securities of a
series shall
constitute a quorum for a meeting of Holders of Securities of
such series. In
the absence of a quorum within 30 minutes of the time appointed
for any such
meeting, the meeting shall, if convened at the request of Holders
of
Securities
of such series, be dissolved. In any other case the meeting may
be adjourned
for
a period of not less than 10 days as determined by the chairman
of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any
such
adjourned meeting, such adjourned meeting may be further
adjourned for a
period
of not less than 10 days as determined by the chairman of the
meeting prior to
the adjournment of such adjourned meeting. Notice of the
reconvening of any
adjourned meeting shall be given as provided in Section 1302(a),
except that
such notice need be given only once not less than five days prior
to the date
on
which the meeting is scheduled to be reconvened. Subject to the
foregoing, at
the reconvening of any such further adjourned meeting, the
Persons entitled to
vote 25% in aggregate principal amount of the Outstanding
Securities of such
series shall constitute a quorum for the taking of any action set
forth in the
notice of the original meeting. Notice of the reconvening of an
adjourned
meeting which was adjourned for lack of a quorum shall state
expressly the
percentage, as provided above, of the principal amount of the
Outstanding
Securities of such series which shall constitute a quorum.
<PAGE>
Except as limited by the proviso to Section 902, and
subject
to the provisions described in the next succeeding paragraph, any
resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum
is
present as aforesaid may be adopted by the affirmative vote of
the lesser of
(i)
the Holders of a majority in principal amount of the Outstanding
Securities of
that series and (ii) 66-2/3% in principal amount of Outstanding
Securities of
such series represented and voting at such meeting or adjourned
meeting;
provided, however, that any resolution with respect to any
request, demand,
authorization, direction, notice, consent, waiver or other action
which this
Indenture expressly provides may be made, given or taken by the
Holders of a
specified percentage, which is less than a majority, in principal
amount of
the
Outstanding Securities of a series may be adopted at a meeting or
an adjourned
meeting duly reconvened and at which a quorum is present as
aforesaid by the
affirmative vote of the lesser of (i) the Holders of such
specified percentage
in principal amount of the Outstanding Securities of that series
and (ii) a
majority in principal amount of Outstanding Securities of such
series
represented and voting at such meeting or adjourned meeting. Any
resolution
passed or decision taken at any meeting of Holders of Securities
of any series
duly held in accordance with this Section shall be binding on all
the Holders
of
Securities of such series and the related Coupons, whether or not
present or
represented at the meeting.
With respect to any consent, waiver or other action
which this
Indenture expressly provides may be given by the Holders of a
specified
percentage of Outstanding Securities of all series affected
thereby (acting as
one class), only the principal amount of Outstanding Securities
of any series
represented at a meeting or adjourned meeting duly reconvened at
which a
quorum
was present, held in accordance with this Section, and voting in
favor of such
action, shall be counted for purposes of calculating the
aggregate principal
amount of Outstanding Securities of all series affected thereby
favoring such
action.
SECTION 1305. Determination of Voting Rights;
Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions
of this
Indenture, the Trustee may make such reasonable regulations as it
may deem
advisable for any meeting of Holders of Securities of a series in
regard to
proof of the holding of Securities of such series and of the
appointment of
proxies and in regard to the appointment and duties of inspectors
of votes,
the
submission and examination of proxies, certificates and other
evidence of the
right to vote, and such other matters concerning the conduct of
the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any
such
regulations, the holding of Securities shall be proved in the
manner specified
in Section 104 and the appointment of any proxy shall be proved
in the manner
specified in Section 104 or by having the signature of the person
executing
the
proxy witnessed or guaranteed by any trust company, bank or
banker authorized
by
Section 104 to certify to the holder of Bearer Securities. Such
regulations
may
provide that written instruments appointing proxies, regular on
their face,
may be presumed valid and genuine without the proof specified in
Section 104
or other proof.
<PAGE>
(b) The Trustee shall, by an instrument in writing,
appoint a
temporary chairman of the meeting, unless the meeting shall have
been called
by
the Company or by Holders of Securities as provided in Section
1302(b), in
which
case the Company or the Holders of Securities of the series
calling the
meeting,
as the case may be, shall in like manner appoint a temporary
chairman. A
permanent chairman and a permanent secretary of the meeting shall
be elected
by
vote of the Persons entitled to vote a majority in principal
amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or
proxy shall be entitled to one vote for each $1,000 principal
amount of the
Outstanding Securities of such series held or represented by him;
provided,
however, that no vote shall be cast or counted at any meeting in
respect of
any
Security challenged as not Outstanding and ruled by the chairman
of the
meeting
to be not Outstanding. The chairman of the meeting shall have no
right to
vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly
called pursuant to Section 1302 at which a quorum is present may
be adjourned
from time to time by Persons entitled to vote a majority in
principal amount
of
the Outstanding Securities of such series represented at the
meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of Holders
of Securities
of any series shall be by written ballots on which shall be
subscribed the
signatures of the Holders of Securities of such series or of
their
representatives by proxy and the principal amounts and serial
numbers of the
Outstanding Securities of such series held or represented by
them. The
permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count
all votes cast at the meeting for or against any resolution and
who shall make
and file with the secretary of the meeting their verified written
reports in
duplicate of all votes cast at the meeting. A record, at least in
duplicate,
of
the proceedings of each meeting of Holders of Securities of any
series shall
be
prepared by the secretary of the meeting and there shall be
attached to said
record the original reports of the inspectors of votes on any
vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the
facts setting forth a copy of the notice of the meeting and
showing that said
notice was given as provided in Section 1302 and, if applicable,
Section 1304.
Each copy shall be signed and verified by the affidavits of the
permanent
chairman and secretary of the meeting and one such copy shall be
delivered to
the Company, and another to the Trustee to be
<PAGE>
preserved by the Trustee, the latter to have attached thereto the
ballots
voted
at the meeting. Any record so signed and verified shall be
conclusive evidence
of the matters therein stated.
ARTICLE XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. Immunity of Incorporators,
Stockholders,
Officers and Directors. No recourse shall be had for the payment
of the
principal of (or premium, if any, on) or interest, if any, on,
any Security of
any series (or any Coupon appertaining thereto), or any part
thereof, or for
any
claim based thereon or otherwise in respect thereof, or of the
indebtedness
represented thereby, or upon any obligation, covenant or
agreement of this
Indenture, against any incorporator, direct or indirect
stockholder, officer
or
director, as such, past, present or future, of the Company, or of
any
successor
corporation, either directly or through the Company or any
successor
corporation, whether by virtue of any constitutional provision,
statute or
rule
of law, or by the enforcement of any assessment or penalty or
otherwise; it
being expressly agreed and understood that this Indenture and all
the
Securities
of all series (and any Coupons appertaining thereto) are solely
corporate
obligations, and that no personal liability whatsoever shall
attach to, or be
incurred by, any incorporator, direct or indirect stockholder,
officer or
director, as such, past, present or future, of the Company or of
any successor
corporation, either directly or through the Company or any
successor
corporation, because of the incurring of the indebtedness hereby
authorized or
under or by reason of any of the obligations, covenants, promises
or
agreements
contained in this Indenture or in any of the Securities of any
series (or any
Coupons appertaining thereto) or to be implied herefrom or
therefrom, and that
all liability, if any, of that character against every such
incorporator,
stockholder, officer and director is, by the acceptance of the
Securities of
any
series (or any Coupons appertaining thereto), and as a condition
of, and as
part
of the consideration for, the execution of this Indenture and the
issue of the
Securities (and any Coupons appertaining thereto), expressly
waived and
released.
ARTICLE XV
Subordination
SECTION 1501. Agreement to Subordinate. Anything to
the contrary herein notwithstanding, the Company covenants and
agrees, and each Holder of Securities of any series (or any
Coupons appertaining thereto) by acceptance thereof likewise
covenants and agrees, that the indebtedness represented by the
<PAGE>
Securities of such series (and any Coupons appertaining thereto)
and the
payment
of the principal of (and premium, if any, on) and interest, if
any, on each
and
all of the Securities of such series (and any Coupons
appertaining thereto)
shall be subordinate and junior in right of payment, to the
extent and in the
manner hereinafter set forth, to the prior payment in full of all
Senior Debt
(as defined below), whether outstanding at the date hereof or
incurred after
the
date hereof, but shall in all respects rank pari passu with all
other Senior
Subordinated Debt (as defined below).
SECTION 1502. No Payments to Holders of Securities in
Certain
Circumstances. (a) In the event of any sale under or in
accordance with any
judgment or decree rendered in any proceeding by or on behalf of
any Holder of
Securities (or any Coupons appertaining thereto) or in the event
of any
distribution, division or application, partial or complete,
voluntary or
involuntary, by operation of law or otherwise, of all or any part
of the
assets
of the Company, or the proceeds thereof, to creditors of the
Company occurring
by reason of any liquidation, dissolution or winding up of the
Company, or in
the event of any receivership, insolvency, bankruptcy,
liquidation,
readjustment, reorganization or other similar proceeding relative
to the
Company
or its debts or properties, then in any such event the holders of
any and all
Senior Debt shall be preferred in the payment of their claims
over the Holders
of Securities (or any Coupons appertaining thereto), and such
Senior Debt
shall
be first paid and satisfied in full before any payment or
distribution of any
kind or character, whether in cash, property or securities (other
than
securities which are subordinate and junior in right of payment
to the payment
of all Senior Debt which may at the time be outstanding), shall
be made upon
the
Securities (or any Coupons appertaining thereto); and in any such
event any
dividend or distribution of any kind or character, whether in
cash, property
or
securities (other than in securities which are subordinate and
junior in right
of payment to the payment of all Senior Debt which may at the
time be
outstanding) which shall be made upon or in respect of the
indebtedness
evidenced by the Securities (or any Coupons appertaining
thereto), or any
renewals or extensions thereof, shall be paid over to the holders
of such
Senior
Debt, pro rata, for application in payment thereof unless and
until such
Senior
Debt shall have been paid and satisfied in full; and
(b) In the event that pursuant to the provisions
hereof any
Security is declared or becomes due and payable before its Stated
Maturity
because of an occurrence of an Event of Default (under
circumstances when
paragraph (a) of this Section 1502 shall not be applicable), no
amount shall
be
paid by the Company in respect of the principal of or interest,
if any, on the
Securities (or any Coupons appertaining thereto) in excess of
current interest
payments as provided herein, except at the Stated Maturity
thereof or in
accordance with any regular mandatory prepayments as contemplated
by Section
301
for Securities of any series (or any Coupons appertaining
thereto)
<PAGE>
(all subject to paragraph (a) of this Section 1502), unless and
until all
Senior
Debt outstanding at the time such Security so becomes due and
payable because
of
any such event shall have been paid in full or payment thereof
shall have been
provided for in a manner satisfactory to the holders of such
outstanding
Senior
Debt; and
(c) Without limiting the effect of any of the other
provisions
of this Article XV, during the continuance of any default with
respect to any
Senior Debt, no payment of principal, sinking fund, interest or
premium shall
be
made on or with respect to the indebtedness evidenced by the
Securities (or
any
Coupons appertaining thereto) or any renewals or extensions
hereof, if either
(1) notice of such default in writing or by telegram has been
given to the
Company by any holder or holders of any Senior Debt, provided
that judicial
proceedings shall be commenced with respect to such default
within 120 days
thereafter or (2) judicial proceedings shall be pending in
respect of such
default.
The Company covenants and agrees, for the benefit of
each and
every present and future holder of Senior Debt, that in the event
that
pursuant
to the provisions hereof any Security is declared or becomes due
and payable
because of an occurrence of an Event of Default, then each holder
of any
Senior
Debt then outstanding shall have the right to declare immediately
due and
payable on demand all or any part of such Senior Debt owing and
payable to
such
holder, regardless of any other maturity or terms of said Senior
Debt; and if
and when any such default has occurred, or any notice of default
under the
terms
hereof may be served upon the Company, then in each such event
the Company
shall
and hereby agrees that it will immediately notify the holders of
the Senior
Debt
of such default or notice thereof, as the case may be.
SECTION 1503. Payments by Trustee or Holders of
Securities to
Holders of Senior Debt. In the event that any payment by, or
distribution of
assets of, the Company of any kind or character, whether in cash,
property or
securities, shall be received by the Trustee or the Holders of
Securities (or
any Coupons appertaining thereto) before all Senior Debt is paid
in full,
contrary to the provisions of Section 1502, such payment or
distribution shall
be paid over to the holders of such Senior Debt or their
representative or
representatives or to the trustee or trustees under any indenture
under which
any instruments evidencing any of such Senior Debt may have been
issued,
ratably
as aforesaid, for application to the payment of all Senior Debt
remaining
unpaid
until all such Senior Debt shall have been paid in full, after
giving effect
to
any concurrent payment or distribution (or provision therefor) to
the holders
of
such Senior Debt.
SECTION 1504. Subrogation. Subject to the payment in
full of all Senior Debt, the Holders of Securities (and any
Coupons appertaining thereto) shall be subrogated to the rights
<PAGE>
of the holders of Senior Debt to receive payments or
distributions of cash,
property or securities of the Company applicable to the Senior
Debt until all
amounts owing on the Securities (and any Coupons appertaining
thereto) shall
be
paid in full, and, as between the Company, its creditors other
than holders of
Senior Debt, and the Holders of Securities (and any Coupons
appertaining
thereto), no such payment or distribution made to the holders of
Senior Debt
by
virtue of this Article XV which otherwise would have been made to
the Holders
of
Securities (and any Coupons appertaining thereto) shall be deemed
to be a
payment by the Company on account of the Senior Debt, it being
understood that
the provisions of this Article XV are and are intended solely for
the purpose
of
defining the relative rights of the Holders of Securities (and
any Coupons
appertaining thereto), on the one hand, and the holders of Senior
Debt, on the
other hand.
SECTION 1505. Obligation of Company Unconditional.
Nothing
herein shall impair, as between the Company and the Holders of
Securities
(and
any Coupons appertaining thereto), the right of the Holder of any
Security or
any Coupon, which is absolute and unconditional, to receive
payment of the
principal (and premium, if any) and interest, if any, thereon in
accordance
with
their terms, or shall prevent the Trustee or any Paying Agent
from applying
any
moneys deposited with it hereunder to the payment of principal of
(or premium,
if any) or interest, if any, on any of the Securities (or any
Coupons
appertaining thereto), in each case except as otherwise provided
in this
Article
XV, nor shall anything herein prevent any Holder of Securities
(or any Coupons
appertaining thereto) from exercising all remedies otherwise
permitted by
applicable law or hereunder upon default hereunder, subject to
the rights, if
any, of holders of Senior Debt as herein provided. Each and every
holder of
Securities (or any Coupons appertaining thereto) by acceptance
thereof shall
undertake and agree for the benefit of each holder of Senior Debt
to execute,
verify, deliver and file any proofs of claim, consents,
assignments or other
instruments which any holder of Senior Debt may at any time
require in order
to
prove and realize upon any rights or claims pertaining to the
Securities (or
any
Coupons appertaining thereto) and to effectuate the full benefit
of the
subordination contained in this Article XV.
Upon any payment or distribution of assets of the
Company
referred to in this Article XV, the Trustee and the Holders of
Securities (or
any Coupons appertaining thereto) shall be entitled to rely upon
any order or
decree made by any court of competent jurisdiction in which any
such
dissolution, winding up, liquidation or reorganization proceeding
affecting
the
affairs of the Company is pending or upon a certificate of the
liquidating
trustee or agent or other person making any payment or
distribution to the
Trustee or to the Holders of Securities (or any Coupons
appertaining thereto)
for the purpose of ascertaining the persons entitled to
participate in such
payment or distribution, the holders of the Senior Debt and other
indebtedness
of the Company, the amount thereof or payable
<PAGE>
thereon, the amount paid or distributed thereon and all other
facts pertinent
thereto or to this Article XV. In the event that the Trustee
determines, in
good
faith, that further evidence is required with respect to the
right of any
person
as a holder of Senior Debt to participate in any payment or
distribution
pursuant to this Article XV, the Trustee may request such person
to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of
Senior Debt held by such person, as to the extent to which such
person is
entitled to participate in such payment or distribution, and as
to other facts
pertinent to the rights of such person under this Article XV, and
if such
evidence is not furnished, the Trustee may defer any payment to
such person
pending judicial determination as to the right of such person to
receive such
payment.
SECTION 1506. Payments on Securities Permitted.
Nothing
contained in this Article XV or elsewhere in this Indenture, or
in any of the
Securities (or any Coupons appertaining thereto), shall (a)
affect the
obligation of the Company to make, or prevent the Company from
making, at any
time except in the event of any event specified in Section 1502,
payments at
any
time of principal of (or premium, if any) or interest, if any, on
the
Securities
of any series (or any Coupons appertaining thereto) or of any
sinking fund
payments with respect to the Securities of any series, or (b)
prevent the
application by the Trustee or any Paying Agent of any moneys held
by the
Trustee
or such Paying Agent in trust for the benefit of the holders of
Securities of
any series (and any Coupons appertaining thereto) as to which
notice of
redemption shall have been mailed or published at least once
prior to the
happening of an event specified in paragraph (b) or (c) of
Section 1502 to the
payment of or on account of the principal of (and premium, if any
on) and
interest, if any, on such Securities (and any Coupons
appertaining thereto),
or
(c) prevent the application by the Trustee or any Paying Agent of
any moneys
deposited prior to the happening of any event specified in
paragraph (b) or
(c)
of Section 1502 with the Trustee or such Paying Agent in trust
for the purpose
of paying a specified installment or installments of interest on
the
Securities
of any series (or any Coupons appertaining thereto), to the
payment of such
installments of interest on the Securities of any series (or any
Coupons
appertaining thereto).
SECTION 1507. Effectuation of Subordination by Trustee.
Each
holder of Securities (or any Coupons appertaining thereto), by
his acceptance
thereof, authorizes and directs the Trustee in his behalf to take
such action
as
may be necessary or appropriate to effectuate the subordination
provided in
this
Article XV and appoints the Trustee his attorney-in-fact for any
and all such
purposes.
The Trustee shall not be deemed to owe any fiduciary
duty to
the holders of Senior Debt and, with respect to the holders of
Senior Debt,
the
Trustee undertakes to perform or to observe only such of its
covenants and
obligations as are specifically set forth in this Article
XV,
and no implied covenants or obligations with respect to the
holders
of Senior Debt shall be read into this Indenture against the
Trustee.
Subject to the provisions of Section 601, the Trustee shall not
be
liable to any holder of Senior Debt if it shall mistakenly pay
over or
deliver to holders of Securities (or any Coupons
appertaining
thereto), the Company or any other person moneys or assets to
which any holder
of Senior Debt shall be entitled by virtue of this Article XV or
otherwise.
SECTION 1508. Knowledge of Trustee.
Notwithstanding the
provisions of this Article XV or any other provisions of this
Indenture, the
Trustee shall not be charged with knowledge of the existence of
any facts
which
would prohibit the making of any payment of moneys to or by the
Trustee, or
the
taking of any other action by the Trustee, unless and until the
Trustee shall
have received written notice thereof from the Company, any
Holder, any Paying
Agent or the holder or representative of any class of Senior
Debt.
Prior to the receipt of any such written notice, the
Trustee,
subject to the provisions of Section 601, shall be entitled in
all respects to
assume that no such facts exist; provided, that if on a date not
less than one
day prior to the date upon which by the terms hereof any such
moneys may
become
payable for any purpose (including, without limitation, the
payment of the
principal of or interest, if any, on any Securities (or any
Coupons
appertaining
thereto)), the Trustee shall not have received with respect to
such moneys the
notice provided for in this Section 1508, then, anything herein
contained to
the
contrary notwithstanding, the Trustee shall have full power and
authority to
receive such moneys and to apply the same to the purpose for
which they were
received, and shall not be affected by any notice to the contrary
which may be
received by it on or after such prior date.
SECTION 1509. Trustee May Hold Senior Debt. The Trustee
shall
be entitled to all the rights set forth in this Article XV with
respect to any
Senior Debt at the time held by it, to the same extent as any
other holder of
Senior Debt, and nothing in Section 613 or elsewhere in this
Indenture shall
deprive the Trustee of any of its rights as such holder.
SECTION 1510. Rights of Holders of Senior Debt Not
Impaired.
No right of any present or future holder of any Senior Debt to
enforce the
subordination herein shall at any time or in any way be
prejudiced or impaired
by any act or failure to act on the part of the Company or by any
non-compliance
by the Company with the terms, provisions and covenants of this
Indenture,
regardless of any knowledge thereof any such holder may have or
be otherwise
charged with.
SECTION 1511. Rights and Obligations Subject to Power
of Court. The right of the holders of Senior Debt and the
obligations of the Trustee and the Holders of Securities (and any
<PAGE>
Coupons appertaining thereto) set forth in this Article XV are
subject to the
power of a court of competent jurisdiction to make other
equitable provision
reflecting the rights conferred in this Indenture upon the Senior
Debt and the
holders thereof with respect to the Securities (and any Coupons
appertaining
thereto) and the holders thereof by a plan of reorganization
under applicable
bankruptcy law.
SECTION 1512. Definitions. The following terms shall
have the following meanings:
"Capital Debt" means the Subordinated Debt
of the
Company
which by the terms of the instrument creating or
evidencing such
Debt
is subordinate and junior in right of payment to all
Senior
Debt,
Senior Subordinated Debt and Junior Subordinated Debt.
"Junior Subordinated Debt" means any
Subordinated Debt
of the Company which is not Senior Subordinated Debt or
Capital Debt.
"Senior Debt" means all Debt of the Company
except
Subordinated Debt.
"Senior Subordinated Debt" means the
Company's 8.875%
Senior
Subordinated Notes due 1998, the Company's 7 1/2%
Senior
Subordinated
Notes Due 1999, and any other Subordinated Debt of the
Company which
by
the terms of the instrument creating or evidencing such
Debt is not
subordinate and junior in right of payment to the
Securities.
"Subordinated Debt" means all Debt (including
but not
limited
to Senior Subordinated Debt, Junior Subordinated Debt
and Capital
Debt)
which is subordinated and junior in right of payment to
any other
Debt
of the Company by the terms of the instrument creating
or
evidencing
such Subordinated Debt.
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
EXHIBIT A.1.
ARISTAR, INC.
[Insert title or sufficient description
of Securities to be delivered]
(the "Securities")
This is to certify that, as of the date hereof, and
except as
set forth below, the above-referenced Securities held by you for
our account
are
owned by (i) persons that are not citizens or residents of the
United States,
domestic partnerships, domestic corporations or estates or trusts
the income
of
which is subject to United States federal income taxation
regardless of its
source ("United States persons"), (ii) United States persons that
(a) are
foreign branches of United States financial institutions (as
defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions")
purchasing for their own accounts or for resale or (b) acquired
the Securities
through foreign branches of United States financial institutions
and that hold
the Securities through such United States financial institutions
on the date
hereof (and in the case of either (a) or (b), each such United
States
financial
institution hereby agrees, on its own behalf or through its
agent, that you
may
advise the issuer or the issuer's agent that it will comply with
the
requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal
Revenue Code of 1986, as amended, and the regulations
thereunder),
<PAGE>
or (iii) financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury
Regulations Section 1.163- 5(c)(2)(i)(D)(7)), and in addition, if
we are a
financial institution described in this clause (iii) (whether or
not also
described in clause (i) or (ii)), we certify that we have not
acquired the
Securities for purposes of resale directly or indirectly to a
United States
person or to a person within the United States.
As used herein, "United States" means the United States
of
America (including the States and the District of Columbia), its
territories,
its possessions, the Commonwealth of Puerto Rico, and other areas
subject to
its
jurisdiction.
We undertake to advise you promptly by tested telex on
or
prior to the date on which you intend to submit your
certification relating to
the Securities held by you for our account in accordance with
your Operating
Procedures if any applicable statement herein is not correct on
such date and,
in the absence of any such notification, it may be assumed that
this
certification applies as of such date.
This certification excepts and does not relate to
$____________ principal amount of such Securities, in respect
of which we
are not able to certify as above and as to which we understand
exchange and
delivery of definitive Securities (or, if relevant, exercise of
any rights or
collection of any interest) cannot be made until we do so
certify.
We understand that this certification is required in
connection with certain tax laws of the United States. In
<PAGE>
connection therewith, if administrative or legal proceedings are
commenced or
threatened in connection with which this certification is or
would be
relevant,
we irrevocably authorize you to produce this certification to any
interested
party in such proceedings.
Dated:_________________________
[To be dated no earlier than 15 days prior to the Exchange Date
or the first interest payment date prior to the Exchange Date,
as relevant]
By:
As, or as agent for, the beneficial owner(s) of the
Securities to
which this certificate relates.
<PAGE>
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR OR CEDEL, S.A. IN
CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
ARISTAR, INC.
[Insert title or sufficient description of
Securities to be delivered]
(the "Securities")
This is to certify that, based solely on
certifications we
have received in writing, by tested telex or by electronic
transmission from
member organizations appearing in our records as persons being
entitled to a
portion of the principal amount set forth below (our "Member
Organizations"),
substantially as set forth in the Temporary Global Security with
respect to
the
Securities, as of the date hereof, $___________ principal amount
of the
above-captioned Securities is owned by (i) persons that are not
citizens or
residents of the United States, domestic partnerships, domestic
corporations,
or
estates or trusts the income of which is subject to United States
federal
income
taxation regardless of its source ("United States persons"), (ii)
United
States
persons that (a) are foreign branches of United States financial
institutions
(as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v))
("financial
institutions") purchasing for their own accounts or for resale or
(b) acquired
the Securities through foreign branches of United States
financial
institutions
and that hold the Securities through such
<PAGE>
United States financial institutions on the date hereof (and in
the case of
either (a) or (b), each such United States financial institution
has agreed,
on
its own behalf or through its agent, that we may advise the
issuer or the
issuer's agent that it will comply with the requirements of
Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue
Code of 1986,
as
amended, and the regulations thereunder), or (iii) financial
institutions for
purposes of resale during the restricted period (as defined in
U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), which financial
institutions
described in this clause (iii) (whether or not also described in
clause (i) or
(ii)) have certified that they have not acquired the Securities
for purposes
of
resale directly or indirectly to a United States person or to
a person
within
the United States.
As used herein, "United States" means the United
States of
America (including the States and the District of Columbia), its
territories,
its possessions, the Commonwealth of Puerto Rico and other areas
subject to
its
jurisdiction.
We further certify (i) that we are not making
available
herewith for exchange (or, if relevant, exercise of any rights or
collection
of
any interest) any portion of the Temporary Global Security
excepted in such
certifications and (ii) that as of the date hereof we have not
received any
notification from any of our Member Organizations to the effect
that the
statements made by such Member Organizations with respect to any
portion of
the
part submitted herewith for exchange (or, if relevant, exercise
of any rights
or
collection of any interest) are no longer true and cannot be
relied upon as
the
date hereof.
<PAGE>
We understand that this certification is
required in
connection with certain tax laws of the United States. In
connection
therewith,
if administrative or legal proceedings are commenced or
threatened in
connection
with which this certification is or would be relevant, we
irrevocably
authorize
you to produce this certification to any interested party in such
proceedings.
*Dated: , 199 Yours faithfully,
MORGAN
GUARANTY TRUST
COMPANY OF
NEW YORK,
Brussels office
as operator
of the Euro-clear
System
or
CEDEL, S.A.
By:
---------------------------
*[Not earlier than the Exchange Date or the first interest
payment date prior
to the Exchange Date, as relevant.]
